News24

Cop rape case to make legal history

2011-12-14 21:57

Johannesburg - Judgment in a case in which a girl was raped by a plainclothes police detective on standby duty will set a new legal precedent, the Constitutional Court said on Wednesday.

According to the court's summary of the matter, the case involves a woman attempting to hold the police minister partially responsible for her rape, at the age of 13, by a policeman who was out of uniform and on call at the time of the crime.

The judgment, to be delivered on Thursday, will determine whether the police minister is "vicariously liable" for damages to the girl, known only as "F".

Previously the court found the police minister was responsible for rape committed by on-duty police officers.

The judgment in F's case will now determine whether the same holds true when the police officer in question is on standby.

"One of the questions that therefore may call for resolution by this court is whether the common law on vicarious liability should be extended in line with the values enshrined in the Bill of Rights."

F was 13 when she went clubbing at the Polana nightclub in the Western Cape in October 1998.

Policeman Allister van Wyk, who was in civilian clothes and on standby, was also at the club. He offered her a lift in his unmarked police vehicle. He told her he was a private detective and she saw a police radio in the car.

Ran away

Although at one point, she got out of the car and ran away, Van Wyk persuaded her to get back in by promising to take her home.

Instead he assaulted and raped her.

Van Wyk was subsequently convicted and discharged from the police for the rape.

F then set about making the police minister responsible for his actions.

She won her case in the Western Cape High Court in Cape Town, but the Supreme Court of Appeal overturned it, on the grounds that Van Wyk was off duty.

The case came before the Constitutional Court in August this year.

The minister's lawyer, Renate Williams, argued that Van Wyk was supposed to be at home and not drinking when he was on call and that the minister could not be held responsible for his actions.

Duty

"It is a red herring to call it 'off duty', 'on duty', 'on call', 'on standby'," submitted Louis Olivier, counsel for F.

"It is similar to a doctor being on call - you have to go to hospital if something happens."

As a policeman, Van Wyk had a duty to protect her, said Olivier.

The Institute for Security Studies (ISS), as a friend of the court, submitted that Van Wyk had four prior convictions - two related to assault, one for negligently discharging a firearm and one for handling a weapon while under the influence of alcohol or drugs.

The police not only kept Van Wyk on, but promoted him to detective sergeant over this period. The institute believed this strengthened the link with vicarious liability.

The ISS also submitted information on an increase in violent crime committed by police officers.

This case takes place in the same week as two police officers, accused of raping a Johannesburg woman, were granted R2 000 bail in the Alexandra Magistrate's Court.

The constable and sergeant, aged 26 and 43, were arrested last week for allegedly raping a 27-year-old woman in Fourways, in the north of Johannesburg, on December 2.

The case resumes in February when a DNA report will be presented.

Comments
  • Cracker - 2011-12-14 22:30

    We the taxpayers will have to pay up to cover the claims. Not that it seems to worry the authorities that someone with such a criminal record remained in a law enforcement position. The claims should be also against those in the police who allow such clearly incompetent officers in their positions. In their personal capacities without the State being allowed to pay the claims out of our pockets.

      Breinlekkasie - 2011-12-15 06:10

      Even so the money will never fix that little girl again.

      John - 2012-03-16 18:35

      @ Breinlekkasie. You right, it won't. But hopefully it will make both our SAPS and Metro police do proper evaluations of the people they employ, as well as to take decisive action against the criminal elements within their ranks.

  • robbieyahu - 2011-12-14 22:45

    sjho !!!! it stays a henious crime ...take note i say crime !!!! period !! no matter what this dirtbag was NOT supposed to stay a cop with such a track-record it is a sure thing that he was a loose canon and would commit such an evil EVIL thing !!!

  • barry.mcbride - 2011-12-15 00:07

    “She won her case in the Western Cape High Court in Cape Town, but the Supreme Court of Appeal overturned it, on the grounds that Van Wyk was off duty.” WTF, that is unbelievable! “As a policeman, Van Wyk had a duty to protect her, said Olivier”, which is more obvious than 1 + 1 = 2

  • Neil - 2011-12-15 01:17

    This poor girl has been failed by her parents for letting her get into this situation in the first place; the cops for letting this piece of rubbish remain in a position of power and trust; the judiciary for not putting him behind bars for his previous disgusting and illegal activities; ans well as society for fostering a culture of rape and violence. I hope she wins the case so the police are forced into action against rogue officers-I also hope her parents receive no financial compensation, if you love your children don't let them go clubbing at 13, at least try to make an effort to keep them safe.

  • Azurite - 2011-12-15 05:19

    WTF was she doing clubbing at the age of 13! She should get a jail sentence for that. And her parents should attend courses on how to look after children. As for the cop, well the bastard should get 20 years!

      quintona - 2011-12-15 06:18

      What does her clubbing have to do with anything? Don't be simple.

      Barefoot - 2011-12-15 07:59

      quintona you don't find anything wrong with a 13 year old at a club? where were the parents?

      Denice - 2011-12-15 08:20

      SO WHAT IF SHE WAS CLUBBING AT 13? not that i agree with clubbing at 13, but her rights were violated by someone who was suppose to protect her, you, and me. kill the bastard

      ludlowdj - 2011-12-15 11:16

      100% correct, the girl must for her own safety and future be placed in a care facility or foster care where she will be properly supervised and controlled.

      Ian - 2011-12-15 13:00

      @Quitona - Firstly I don't know the details of this case very well but: If you are under age and at a club(for over 18's) and you proceed to have sex with someone, then that person is protected due being under the impression you are over 18(you are in a place where you MUST be over 18 to be allowed in), so I'm assuming the guy found out she was younger than 18 and then raped(being under 18 and having consensual sex with someone older than 18 is still rape) her. I'm NOT arguing in defence of the policeman that raped her, send him to jail and all that. I am merely pointing out that she shouldn't have been at the club in the first place.

      John - 2012-03-16 18:39

      Maybe she shouldn't have been out clubbing, we all have our own standards, and there is nothing to say that her parents were aware.... However, if it hadn't been her, he would have found someone else to rape... and thats the point

  • brewster - 2011-12-15 08:28

    He was on stand-by. His condition of employment requires him to be on stand by from time to time. He gets paid specifically for the time the he is on stand-by. The fact that he is not required to be at the station during stand-by is a privelage and does not deter from his staus as being on duty. Of course he was on duty!

  • Paul - 2011-12-15 08:52

    hang them higher.....

  • Sharon - 2011-12-15 09:16

    He is guilty, he was on call/standby and he gave her a lift in his "unmarked" police car.Unmarked or not it is public property and is not to be used when you are at a jol, if on standby/on call what was he doing at a club?

  • janjac.gilbert - 2011-12-15 09:22

    What is a 13 yo doing at a night club? Sue the parents for lack of supervision and/or negligence. A lot of child abuse has to do with the incompetency of parents. As far as policeman goes, remove his testicles.

  • J-Man - 2011-12-15 09:52

    Who lets their 13 year old girl go clubbing??

  • ludlowdj - 2011-12-15 11:15

    This is an open and shut case, Anyone who has anything to do with the police or military will tell you that a Police officer is never off duty, even when he is. Irrespective of whether the policeman is officially on duty, off duty or on standby he is still a police officer and still required to perform his duties. The Police minister is therefore solely and wholly responsible for every act or omission by any police officer who acts contrary to the law. To even suggest otherwise is to effectively say that off duty police officer do not hold any power that is not already held by a normal citizen while he off duty. This if upheld as a principle to shield the minister from legal repercussions will open up a whole new can of legal repercussions including unlawful arrest, acting outside the course and scope of duties etc. not to mention the number of off duty officer that will find themselves on the wrong side of a hiding for their troubles.

      davieoosie - 2011-12-15 14:47

      He was on stand by. He was standing by the door, stalking under aged girls.

  • ajjordaan - 2012-03-16 19:05

    Pay up! That is the only way the Government will learn to take responsibility for these employees and ensure that they are properly trained and disciplined. He should not have been a cop a long time ago!

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