K v Minister of Safety and Security

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Madala J, Mokgoro J, O'Regan J, Sachs J, Skweyiya J, Van der Westhuizen J and Yacoob J
• Judgment Date: 13 June 2005
• Citation: 2005 (6) SA 419 (CC)
• Docket Number: 52/04
• Hearing Date: 10 May 2005
• Counsel: W Trengove SC (with him K Pillay) for the applicant. P F Louw SC (with him J A Babamia) for the respondent.
• Court: Constitutional Court

O'Regan J:

[1] This is an application for leave to appeal against a judgment of the Supreme Court of Appeal. Ms N K, the applicant, seeks damages in delict from the Minister of Safety and Security, the C respondent, on the basis that she was raped by three uniformed and on-duty policemen after she had accepted a lift home from them when she found herself effectively stranded in the early hours of the morning. The case raises the scope of the vicarious liability of the Minister of Safety and Security under our law. Both the High Court and the Supreme Court of Appeal dismissed Ms K's claim on the grounds that the D respondent was not vicariously liable for the conduct of the policemen which had caused the harm to Ms K.

The facts

[2] The parties agreed to a statement of facts and so no evidence was led in the High Court. According to that statement, on 26 March E 1999, Ms K who was then just 20 years old, had a date with a boyfriend at the Bundu Inn. The arrangement was that he would take her home at the end of the evening. At midnight, when the Inn closed, they chose to go to another bar. There a former girlfriend of her companion turned up F and an argument broke out between Ms K and her companion. Shortly after, she asked him to take her home but he refused and she decided to find a telephone to call her mother to collect her. There was no phone at the bar and she decided to walk to a nearby petrol station. It was now approximately 04:00. G

[3] At the petrol station, the attendant informed her that the phone could not be used for outgoing calls. She did not accept this and begged him to let her use the telephone. At that time, a car drew up and a policeman in full uniform came into the shop. The policeman, Sergeant Nathaniel Rammutle, was the driver of the car that was an official South African Police Service vehicle. Sergeant Rammutle H approached Ms K and, according to the agreed statement, addressed her in fluent Afrikaans to ask where she was going. She answered that she really wanted to go home and he offered to take her there. She accepted his offer and climbed into the car in which there were two other policemen, Sergeant Ephraim Gabaatlholwe and Sergeant Edwin Nqandela I who were also both in uniform. All of the policemen were on duty at the time. She did not know any of the policemen.

[4] They started in the direction of her home. Ms K did not speak to them, but they spoke amongst themselves in a language she did not J

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understand. She fell asleep for a short while. When she awoke, the car took a turn in the wrong direction. She immediately said to the A driver that it was the wrong direction. But the policemen immediately told her to be quiet and a policeman's jacket was thrown over her head and held tight. She began to kick and scream and to ask what was happening, but the jacket was held tight and she was instructed to keep quiet. She struggled unsuccessfully to free herself. The jacket was pulled tighter and tighter over her head until she was struggling to B breathe. She then begged the policemen to remove the jacket but she was punched sharply in the stomach and told that she would be killed if she did not stay quiet. Thereafter the car came to a halt.

[5] According to the agreed statement of facts, the applicant was then forced onto the back seat of the car, her denim jeans, C underwear, socks and shoes were removed and she was raped by the three policemen in turn. She continued to struggle to no avail. After raping her, the policemen put some of her clothing back on her, and helped her out of the car. The police jacket was still held over her head. She was then thrown on the ground, the jacket removed and the three men climbed D back into the vehicle which raced away.

[6] Looking around her, she realised she was in some bushes but did not know where she was precisely. She was hysterical and began to run. She soon realised that she was near her home and ran there, where she found her mother. A charge of rape was laid and the three policemen E were arrested, charged and convicted of rape and kidnapping on 25 May 2000 in the Johannesburg High Court. They were sentenced to life imprisonment for rape and ten years' imprisonment for kidnapping. They are still serving their sentences. F

[7] It was admitted by the Minister that as policemen who were on duty, the three policemen had a general duty to ensure the safety of members of the public and to prevent crime. It was also accepted by both parties that the three policemen were aware of the provisions of s 10(1) of Special Force Order 3(A) of 1987 of the South African Police Services which prohibits the transport of unauthorised G passengers in police vehicles. According to the standing order, the following passengers may be transported: persons who have been arrested; awaiting trial prisoners; sentenced prisoners; state witnesses; defence witnesses in certain circumstances; and people who, in the interests of the state, are assisting the police to carry out H their official duties such as doctors. [1] According to the standing order, there is a further category of persons who may be transported:

'(aa)

where a policeman encounters a collision or breakdown and there are persons who have sustained injuries or who are stranded, [2] he may, if necessary, use the government-owned vehicle to convey the injured, who may safely be moved I together with their private property, free of charge, to

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a hospital or doctor on his authorised route, or to convey the persons who are A stranded and their private property, free of charge, to an hotel or other place on his authorised route.

(bb)

The names, residential addresses and the registration numbers of the vehicles of persons so conveyed must be entered in the vehicle register (SAP 132(b)).

(cc)

Although the State is indemnified by s 32bis of Act 7 of 1958, it must, where at all possible, B be explained to persons conveyed in accordance with subpara (1)(c)(vii) that they are being conveyed at their own risk.'

(Footnote added.)

Proceedings in the High Court and Supreme Court of Appeal C

[8] Ms K instituted proceedings in the Johannesburg High Court against the respondent, as well as the three policemen, for damages arising from the conduct of the policemen in the early morning of 27 March 1999. She subsequently abandoned the claim against the three policemen who were in prison and unlikely to be able to pay any damages awarded against them. The remaining two parties agreed that the D issue of the liability of the Minister should be determined first and that the quantum of damages investigation should await the outcome of that determination. The High Court dismissed Ms K's claim but granted her leave to appeal to the Supreme Court of Appeal. E

[9] The Supreme Court of Appeal dismissed the appeal. It held that on the existing principles of vicarious liability the respondent was not liable for the damages suffered by Ms K. Scott JA for a unanimous Court reasoned as follows: F

'The legal principles underlying vicarious responsibility are well-established. An employer, whether a Minister of State or otherwise, will be vicariously liable for the delict of an employee if the delict is committed by the employee in the course and scope of his or her employment. Difficulty frequently arises in the application of the rule, particularly in so-called ''deviation'' cases. But the test, commonly referred to as the ''standard test'', has been repeatedly applied by this Court. Where there is a deviation the G inquiry, in short, is whether the deviation was of such a degree that it can be said that in doing what he or she did the employee was still exercising the functions to which he or she was appointed or was still carrying out some instruction of his or her employer. If the answer is yes, the employer will be liable no matter how badly or dishonestly or negligently those functions or instructions were being exercised by the employee. [3] H

The Court held that on this test the Minister could not be held liable for the rape of the applicant. The Court also rejected arguments that the common-law rule should be developed in the light of the spirit, purport and objects of the Constitution and an argument that the Minister was liable because at the time of the rape, the policemen I were simultaneously failing to perform their duty to protect the applicant. In ending, Scott JA

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noted that he had the 'deepest sympathy for the appellant' but held that providing her with compensation was a A matter for the Legislature and not the courts. [4]

[10] The applicant now seeks leave to appeal to this Court.

The application for leave to appeal B

[11] The applicant bases her appeal on three arguments: the first is that the Supreme Court of Appeal erred in its application of the standard, common-law test for vicarious liability; the second is that if the Supreme Court of Appeal did not err in its application of the test, that test should be developed in the light of s 39(2) of the Constitution as the result does not accord with the spirit, purport and C objects of the Constitution. The third argument is that the state should be held directly liable for its failure to protect Ms K from harm. The respondent opposes the application for leave to appeal.

A constitutional issue? D

[12] The first question that arises is whether the matter raises a constitutional issue. The respondent argues that it does not, at least to the extent that the case concerns the application of the principles of vicarious liability. It relies on this Court's judgment in Phoebus Apollo Aviation CC v Minister of Safety and Security. [5] In that case the appellant had E sought to hold the Minister of Safety and Security liable in delict for damages arising from the...