News24

Cop rapist: ConCourt wades in

2011-08-04 15:08

Johannesburg - The Constitutional Court will have to decide whether the police minister is liable for the rape of a 13-year-old girl by a plainclothes police detective who was on call, following an argument at the court on Thursday.

Ms "F" was 13-years-old when she went clubbing at the Polana nightclub in the Western Cape in October 1998.

She fell out with her friends and met the detective, who was there with two of his friends, one of whom she knew casually.

The policeman, in plainclothes, offered to take her home, and they all left in his unmarked police car.

He told her he was a private detective and she saw a police radio in the car.

After he dropped his friends off, he drove to a dark place in Kaaimans, outside George, and the girl started feeling uneasy.

Similar case

She got out of the car, ran away and hid. She later made her way to the N2, but the policeman pulled up alongside her and promised to take her home.

However, he assaulted her and raped her instead.

This case is similar to the case of a "Ms K" who was stranded and accepted a lift from uniformed, on-duty policemen who later raped her in a police vehicle.

In that case, the Constitutional Court found the police minister vicariously responsible for the officers' actions, paving the way for Ms K to sue for compensation.

This case is an attempt to hold the police minister responsible for the actions of a policeman out of uniform and just "on call".

On the night of the incident

According to court papers, Ms F's attacker, policeman Allister van Wyk, was stationed at the George police station. His normal hours were 07:30 to 16:00.

The station operated a standby roster system whereby the detectives could leave after 16:00 and go about their private business, but would be available to resume duties during that time if necessary.

To be able to respond to a call, he was allowed to use a state vehicle and if he was called in, he had to make a note of the times he worked and give these to his commander.

Officers on call received a standby allowance as compensation for the restriction on their movement over the 24-hour period.

On the night in question, Van Wyk worked at the office until 20:00 then took the state vehicle home with some dockets in a file in the car.

At 22:00, he took the car to the club where he had drinks with two friends, even though he was not allowed to use the police car for private purposes.

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

Ms F then set about making the police minister responsible for his actions - known as vicarious liability.

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

On call, on duty... 

Ms F then took the case to the Constitutional Court, to appeal the SCA's ruling.

Renate Williams, counsel for the minister, 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 Ms F.

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

Olivier said that as a policeman, Van Wyk had a duty to protect her. He had agreed to this by signing a code of conduct, and in terms of the Criminal Procedure Act, he was empowered to prevent a crime from taking place.

He said the vehicle was the link between the employer and the employee, and as a policeman Van Wyk should have protected the girl.

The Institute for Security Studies, as a friend of the court, submitted in its papers that an extra dimension to the case was the police's "creation of risk" by employing Van Wyk.

Promoted

He had four prior convictions - one for assault with intent to cause grievous bodily harm, one for negligently discharging a firearm, one for handling a weapon while under the influence of alcohol or drugs, and one for assault.

The police not only kept him on, but promoted him to detective sergeant, thereby increasing risk over time.

It believed this strengthened the link with vicarious liability.

The ISS also submitted information on an increase in violent crime committed by police officers, based on Policy Advisory Council reports between 2007 and 2010, and Independent Complaints Directorate statistics, which showed a dearth of police training and discipline.

Whether he was on duty, off duty, or on standby, Van Wyk was allowed to work alone and unsupervised, it argued.

At the time of the rape, Van Wyk did not own a motor vehicle and without the state car, would not have had the "tools" for the crime.

Judgment is customarily handed down after the judges have reviewed the submissions made to them.

Comments
  • THE.SRG - 2011-08-04 15:16

    Now who should be scared...the police ore us!

      THE.SRG - 2011-08-04 15:28

      I know whats coming..one cop...but pls,he got a promotion after several f ups...WTH. "He had four prior convictions - one for assault with intent to cause grievous bodily harm, one for negligently discharging a firearm, one for handling a weapon while under the influence of alcohol or drugs, and one for assault. The police not only kept him on, but promoted him to detective sergeant, thereby increasing risk over time."

      Ntfutfuko - 2011-08-04 16:28

      The policeman is Allister van Wyk, this must be another isolated incident!

      THE.SRG - 2011-08-04 16:54

      @Ntfutfuko....i dont know what you mean buy that...it could be van Wyk,Naidoo or Nemadodzi for all i care...its still disgusting and i dont appreciate your racial insinuation on my thread...piss off!

  • stiffler - 2011-08-04 15:17

    This is truly sickening. And our stupid fu##ing Bheki Cele wont have anything constructive to say...apart from trying to take the cops side. These barstards need to hanged! Dont they realise that they too have mothers and sisters?? Sies, they are far from human and should be killed.

      Yoni - 2011-08-04 19:59

      The claim should not succeed based on what I read in the article. If I drive home after hours in a pool car from my employer, and I knock down a pedestrian, is my employer liable? Methink not.

  • Mdavu-zn - 2011-08-04 15:18

    Yawning.................

  • Matt :-) - 2011-08-04 15:21

    A PIG raped a CHILD, on duty?! How the F must we have ANY respect for them! Sure it's not all officers, but we're supposed to trust them with our safety, law and order! But how? Useless, corrupt and now a rapist in their employ? Must we now just ignore them at roadblocks (the only time you'll find a cop doing his job) in case they assault us? How can we trust ANY of them?!

      THE.SRG - 2011-08-04 17:02

      especially when they scared of wearing their uniforms and dont feel honour for their jobs

  • The_Librarian2 - 2011-08-04 15:21

    Never mind all that, what was a 13-year old doing in a nightclub without a proper escort? The tax payer will have to fork out after all this is said and done...

      Nepster10 - 2011-08-04 15:47

      Was gonna ask the same question.

      THE.SRG - 2011-08-04 15:56

      come on man....she may have been wrong for being at a night club at that age but hell...lets look at the bigger picture,a police officer who was promoted after being convicted of four prior convictions then rapes a girl of that age....which is worse?The police force of these days ids obviously mismanaged and full of criminals!

      Matt :-) - 2011-08-04 15:57

      Same reason I see young children of single-digit age walking along main roads to get to school... same reason I see children out on the streets late-evenings... same reason I see children in the streets during the day when they should be at school... do parents really care that little about their children?!

      Fedup - 2011-08-04 16:01

      I hear what your saying Matt, and agree with you

      Doorboot - 2011-08-04 16:10

      Stupid question, no woman should ever be raped. If she was walking around naked then she still does not deserve to be raped!

      Orcanda - 2011-08-04 16:32

      Good question, BUT this does not make it ok for that van Wyk to have raped the child. Dont try to put the blame on the child. She trusted him because he was a policeman and yet he abused her trust by raping her and he abused his powers as a policeman. This does not excuse him at all because she was at the club.

      Orcanda - 2011-08-04 16:38

      Matt many parents are at work blissfully unaware that the child skipped school. But I agree children that young should not walk alone to school or be out on the street late at night. I have seen with my own eyes visiting my sister in Pretoria how parents drop their youngsters at the mall and they stayed there the whole weekend while mommy and daddy enjoy themselves, how do I know, they were in school with my sisters then 12 year old and they told her that the parents leave them there to fend for themselves the whole weekend. I ask you..where do they sleep in that mall? An yes mommy and daddy are welloff, they are rich and then things like this happens. SHAMEFUL

  • greenpea - 2011-08-04 15:42

    really good article news24. this pig should go to jail so that he can get raped 2

  • tokoloshe - 2011-08-04 15:52

    wont be long and he will be on the short list to becoming a brigadier. four convictions and still a policeman boggles a sane mind.

      meindert - 2011-08-04 16:13

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

  • tokoloshe - 2011-08-04 15:53

    i have a "white" friend who is a captain, has not had a promotion in 15 years. strange is it not.

      Matt :-) - 2011-08-04 15:55

      Same applies in the UK - the Metropolitan Police are known for promoting people purely because their skin is dark and they have quotas... it's so bad. What merit does merit have?

  • Civil_Rights - 2011-08-04 15:55

    The minister is liable end of discussion. Now prosecute him

  • MnrFotograaf - 2011-08-04 16:01

    If he was on duty or any form of paid time, the police and their bosses are responsible as well, but that's only my opinion on justice.

  • DEVILS SON - 2011-08-04 16:01

    Apparently police are technically never off duty, they have no choice but to help at any time of day or night regardless of being on or of duty. refer to the Batho Pele principles. saps are not allowed to not help. therefore off duty or not the dirty bastard is "on duty"

  • Agent Bastad - 2011-08-04 16:10

    What is a 13 yealr old child doing at a night club?

      DEVILS SON - 2011-08-04 16:13

      looking for trouble apparently

      InternetMan - 2011-08-04 16:20

      I'd wager that she was socializing and possibly dancing, but that's just me.

      DEVILS SON - 2011-08-04 16:25

      internet man you have a firm grasp on the obvious haha il put my bucks on that too

      Anastasia - 2011-08-04 17:08

      Without a doubt, she should not have been there. Having said that, no matter how illicit the action, she did not deserve to be raped for it.

      Agent Bastad - 2011-09-26 16:18

      I agree. I'm just trying to make the case for common sense.

  • derkus - 2011-08-04 16:13

    I do not believe what I am reading,what is wrong with justice in this so called rainbow nation

      Matt :-) - 2011-08-04 16:31

      No consolation, but poor justice is a worldwide thing these days

      DEVILS SON - 2011-08-04 16:32

      in sa justice is just as corrupt and criminal as innocent, mavis, cabinet, philemon, julius, disappointment and beauty. justice is some guys name here in sa

  • YES - 2011-08-04 16:32

    It didn't need the blind to see causatic link between official police car and the perpertrator. Why allow him to go home with official vehicle and not use it for purpose that is intended for? The agree with a view that the minister is liable.

  • Anonymous Thinker - 2011-08-04 17:24

    That he had FOUR prior convictions and was still a police office definately makes it the ministers fault. That man had no business still being a police officer.

  • gatvol4corru - 2011-08-05 14:35

    and these are the people we have to trust with our safety? I guess,like with the assault at Cats Pyamas,nothing will happen and Cele will rent new buildings from his mates

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