Cop rape case to make legal history
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.
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.
"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.