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.

  • stephen.pollock1 - 2011-12-15 11:42

    Good result ConCourt. Long live your independence!

      Bardy - 2011-12-15 11:51

      WTF is a 13 year old girl doing at a night club?

      Jono - 2011-12-15 11:55

      so who can you really trust in this world?

      Poloyatonki - 2011-12-15 12:00

      I wonder what is the point of digging up old forgotten stories....

      makatika - 2011-12-15 12:01

      @Bardy people don't to a club with IDs, I experience a situation where an older person denied entry to a club but a minor allowed entry all because the confusing look. Beside was there a law for drinking age in 1998

      Bardy - 2011-12-15 12:06

      @ makatika - LOL! OFCOURSE there was a drinking age law that time! I don't know what you are smoking bro, but pass that stuff on!

      emile.eley - 2011-12-15 13:25

      Does it matter Bardy? The point is the kid got raped.

      Bardy - 2011-12-15 13:53

      @ emile - If the parents were looking after their child she would not have been at a night club at that young age and would not have gotten raped! My goodness! She should still be in primary school for crying out loud! How the hell can you let your daughter of that age stay out later than 20:00 any given night during the week (including weekends - 21:00 maybe latest if she is at a friends house with responsible parents!) They should not be in places meant for adults!

      Grant - 2011-12-15 14:01

      @Bardy - kids lie! "I'm going to sleep at my friend's house tonight. k ma??" No, she should not have been out, and yes she put herself in a position she should not have been in. But is that REALLY more important than the rape? Come on guy!

      Bardy - 2011-12-15 14:22

      @ Emile and Grant - I know that the rape is the issue. I was just wondering what she was doing at a night club in the first place. Forgive me, but kids that age going to night clubs are looking for trouble. I sympathize with her though. Girls that young should not be exposed to sex (willingly or rape). It's very sad!

  • reinhard.pettenburger - 2011-12-15 11:45

    Great ruling well done!!

  • makatika - 2011-12-15 11:51

    Give Chief Justice Mogoeng Mogoeng some bells

  • Theresa - 2011-12-15 11:54

    Excellent result, but I have to ask:What parent allows their 13 year old daughter to go to a night club alone?MHO that's seriously looking for trouble.Hope the policeman gets put away for a long time.

  • Ig - 2011-12-15 11:57

    And what will happen???????, nothing as usual............................

  • John - 2011-12-15 12:00

    Yes... yes... yes...

  • watson.tshililo - 2011-12-15 12:17

    The Contitutional Court excersised its judgement without favour.The judgement is satisfying.

  • Sharon - 2011-12-15 12:23

    Good the cop must pay the money back to the state ..............itchy prk that he is

  • Thozi - 2011-12-15 12:40

    Is it too early to apologise to the Chief Justice, for having suspected his 'fairness and impartiality'? Let me eat a humble pie: I for one, am sorry.

  • jpcronje - 2011-12-15 12:41

    Why was a 13-yr old in a night club to start with?

      raegan.mcreed - 2011-12-15 12:54

      maybe to make a quick buck, the officer didnt pay, so she cries rape..., 'just a suggestion'

      emile.eley - 2011-12-15 13:27

      Is that how you operate Raegan you sick pr#ck?

  • midkemia - 2011-12-15 12:59

    how did he manage to drive from polana in cape town to george! thats a 4-5 hour drive...

  • Atholl - 2011-12-15 13:00

    Ms F placed her trust in him ...and ... .. the police [vehicle] facilitated the commission of the rape . .. could also have been police [uniform] facilitated the crime. That's where the 'ministry' (responsible) has failed it's Constitutional duty to the girl's right to security (safety) ... It also means that a young girl or boy ... who turns to the 'hand of trust and safety' - who is then betrayed by the 'hand of trust' - would be left with no other alternative than to trust nobody ... nothing that moves. .. and the reason is that there is no respect by people who are elevated to positions of trust ..

      MIMIGOUWS - 2011-12-15 13:23

      I was sexually harassed by an onduty traffic officer who I did not know who literally got into my car to fondle me. That happened yrs ago but everytime I see a traffic officer I feel dirty it reminds me of that day and I feel that justice has failed me big time. He was fired from the traffic services or so I was told but what about me having to live with the thoughts. Compensation do not bring comfort but someone has to be held responsible for the Officers bad behaviours. After all they do lay down an outhe to serve and protect.

      aarchaic - 2011-12-15 14:14

      Atholl very good analysis you made there i hope this verdict is going to make heads roll from now. And the fact that Government will need to stand liable on this should have been in place from the word go not just now. Our Neighbours across the street was Hi-jacked at Gun point with people wearing a Police uniform in Hatfield now if it was real police or people imitating a police man i cant say for sure. but this should be seen in a familiar light i think as you pull over in trust...

      Atholl - 2011-12-15 14:52

      MimiGouws still has a method to (intellectually) deal with her 'abuse of the hand of trust'. Others (girls & boys) don't have the (intellectual) ability to deal with abuse so they 'solve' their situation later in life by targeting any person who fits the 'abuser' profile. Could be an innocent boss, wife, husband ... even own son/daughter. Just like the Pink Floyd song - 'mother' ... Mother should I trust the government ... momma's (daddy's) gonna make all of your nightmares come true Mama's gonna put all of her fears into you ... ... because the one who started the 'nightmare' is sailing the carribean on a yacht ..

  • Larry - 2011-12-15 14:08

    Good Result.

  • Archie - 2011-12-15 14:14

    Her life is changed forever,his life must now change forever.Go to jail butwipe

  • Tyron - 2011-12-15 14:23

    I don't understand the implications of the ruling. Does this mean she is entitled to sue the state and not the individual only? Will there now be compensation paid, or does she have to return to the courts and start proceedings against the Minister

      Mike - 2011-12-15 16:22

      That's correct she can now sue the minister. This decision will now lead to thousands of new cases against the minister that previously could not be brought, so the more corrupt the police, the more tax payer's will fork out for damages claims.

  • Daft - 2011-12-15 16:51

    There is no such thing as rape cause a woman can run faster with her dress up than a man with his pants down.

  • ajjordaan - 2012-03-16 19:09

    Great stuff!!

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