Cop rapist: ConCourt wades in
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.
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.
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.