Police dept liable for rape cop's conduct

2011-12-15 11:37

Johannesburg - The Constitutional Court on Thursday ruled that the police department was liable for the conduct of an officer who raped a 13-year-old Western Cape girl in 1998.

Former Detective Allister van Wyk, who was based at the George police station, and off duty at the time of the October 1998 incident, used a police vehicle to give the girl identified as 'Ms F' a lift.

Van Wyk, who was in possession of the state vehicle because he was on call that night and had some dockets with him, drove the girl to a dark place in Kaaimans, outside George, and assaulted her before raping her.

The teenager was from a nightclub where she had a fallout with her friends leading to her meeting Van Wyk.

Van Wyk was at the same club with two of his friends, one of whom was casually known by the girl.

Van Wyk offered to take her home, but after he dropped off his friends he raped her before taking her to her home. He threatened to kill her if she reported him to anyone.

The former detective was convicted for the girl's rape and sentenced to 12 years, of which five was suspended.

He was also dismissed from the police service.

This outcome was followed by the girl legally holding the police minister responsible for Van Wyk's actions and she won her case in the Western Cape High Court.

However, her victory was short-lived when the Supreme Court of Appeal overturned the High Court ruling on the grounds that Van Wyk was off duty when he committed the crime.

This led to the matter being brought to the Constitutional Court and heard in August this year.

In the judgment written by Chief Justice Mogoeng Mogoeng and delivered by Judge Bess Nkabinde-Mmono, majority rule held that the facts of the case gave rise to a sufficient close link between the policeman's employment and the assault and rape of Ms F.

Obligation to protect the public

"The link was founded on the basis that the police vehicle facilitated the commission of the rape, that Ms F placed her trust in him because he was a police official, and that the State has a constitutional obligation to protect the public against crime," Nkabinde said.

"Consequently, the minister was held vicariously liable for the damages suffered by Ms F as a result of the rape and assault," she said.

In a separate concurring judgment, Judge Johan Froneman agreed with the ruling of the majority, hut also found that the minister should be held directly, rather than vicariously liable, on the grounds that the actions of state officials were in effect the state's own actions.

Also he found that the normative considerations for determining liability may be appropriately assessed under the wrongfulness inquiry in a direct delictual action.

Reading the minority judgment, Nkabinde said Judge Zakeria Yacoob, with whom Judge Nyaole Jafta agreed, applied the same test as the majority, but concluded that there was not a sufficient link between the delict and the employment of Van Wyk.

"The policeman's heinous, unlawful conduct was too far removed in space and time from his employment to render the use of the police car and the presence of the police dockets in the car sufficient to establish vicarious liability," the minority judgment read.

This was so even if due regard was had to the victim's vulnerability and age.

The police department was further ordered to pay all Ms F's legal costs.

- SAPA