Minister of Safety and Security v F (592/09) [2011] ZASCA 3; 2011 (3) SA 487 (SCA); [2011] 3 All SA 149 (SCA); (2011) 32 ILJ 1856 (SCA) (22 February 2011)

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[2011] ZASCA 3
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Minister of Safety and Security v F (592/09) [2011] ZASCA 3; 2011 (3) SA 487 (SCA); [2011] 3 All SA 149 (SCA); (2011) 32 ILJ 1856 (SCA) (22 February 2011)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 592/09
In the matter between:
THE MINISTER OF SAFETY AND
SECURITY
.........................
Appellant
and
F
........................................................................................................
Respondent
Neutral citation:
The
Minister of Safety and Security v F
(592/09)
[2011] ZASCA 3
(22 February 2011)
Coram:
NUGENT, MAYA,
SNYDERS and BOSIELO JJA and R PILLAY AJA
Heard:
11 NOVEMBER 2010
Delivered: 22 FEBRUARY 2011
Summary:
Vicarious
liability – police officer – crime committed while not on
duty but on ‘call’ – whether state
liable.
_____________________________________________________________________
ORDER
_____________________________________________________________________
On appeal from: Western Cape High
Court (Bozalek J sitting as court of first instance).
The appeal is upheld. The orders
of the court below so far as they relate the appellant (first
defendant in the court below) are
set aside and the following is
substituted:
‘
The
claim against the first defendant is dismissed’.
_______________________________________________________________________
JUDGMENT
_______________________________________________________________________
NUGENT JA (SNYDERS JA and R
PILLAY AJ concurring)
[1]
K
v Minister of Safety and Security
1
concerned a
claim by a woman who was raped by three policemen. She had
encountered them at a petrol station where she was stranded
in the
early hours of the morning. The policemen were on duty at the time,
they were in uniform, and they were in a marked police
vehicle. They
offered to take her home and she readily accepted. Instead she was
driven to a quiet place where she was raped. Needless
to say, the
policemen were all delictually liable for their conduct, but that was
not the issue in the case. The issue was whether
the State –
nominally represented by the Minister of Safety and Security –
was vicariously liable for their conduct.
The Constitutional Court
held that it was.
[2] This case
seeks to take that a step further. The respondent in this case –
who I will refer to as Ms F – was also
raped by a policeman. Ms
F had similarly found herself stranded late at night and the
policeman offered to drive her home. Instead
he drove to a remote
spot where he raped her. The distinction between this case and
K
is
that on this occasion the policeman was not on duty. Once more the
question is whether the State is vicariously liable for the

consequences of his conduct. The court below (Bozalek J in the
Western Cape High Court) held that it is.
2
The Minister
now appeals with the leave of that court.
[3] The policeman concerned was
Mr van Wyk, a detective who was stationed at George. He was off duty
but on ‘standby’
or on ‘call’ – as it
was variously called in the evidence – at the time the incident
occurred. A former
senior police officer – Mr Du Toit, who was
then a Provincial Commander: General Investigations, in command of
all detectives
in the Western Cape – explained how the
‘standby’ system worked at the time.
[4] The ordinary working hours of
detectives were from 07h30 to 16h00 but every station had to make
officers available on a ‘standby
duty roster’. This meant
that a detective who had been rostered was entitled to return home
and go about his or her private
business in the ordinary way after
completing his or her shift but could be called upon to resume duty
at any time between shifts.
To enable him or her to respond to a call
to resume duty a state vehicle was made available to the detective.
If called upon to
resume duty the detective was required to note the
period for which duty was performed in his or her pocketbook and
later to present
it to his or her commanding officer.
[5] Detectives who were rostered
were not paid for the time that they performed duty while on call but
they received a ‘standby
allowance’. The standard
conditions of service in that regard provided as follows:
‘
A
non-pensionable Standby Allowance at a tariff of R16.80 is payable to
officials who must be available for 24 hours per day for
the
performance of duty (This must be regarded as payment for overtime
duties performed.)’
The conditions went on to
provide:
‘
The
Standby Allowance was instituted to compensate for the restriction of
movement placed on personnel on Standby duty and their
households.
This implies that these personnel have to be available at their
dwelling in order to be available for duty at short
notice unless
where special alternative arrangements have been made’.
[6] The incident with which we
are concerned occurred in 1998 when Ms F was thirteen years old.
Summons was issued in 2008, after
she had reached majority, and the
action was tried in 2009. Both Ms F and Mr van Wyk gave evidence. The
evidence of Mr van Wyk
was in some respects remarkably candid and by
and large it coincides with that of Ms F but in some respects their
evidence diverges.
In some such instances the evidence of Ms F was
vague or uncertain or even contradictory but bearing in mind her age
at the time
and the long interval before she gave evidence that is
not unexpected. The court below rejected the evidence of Mr Van Wyk
where
it diverged from the evidence of Ms F. On the view that I take
of the matter I need not evaluate that finding – I have
accepted
the evidence of Ms F wherever it diverges from that of Mr
Van Wyk.
[7] On 14 October 1998 Mr van Wyk
was on the standby roster. His shift ended at 16h00 in the ordinary
course but he remained on
duty until about 20h00, apparently to
complete various tasks. He then left the office and returned home in
a police vehicle, which
was unmarked but equipped with a
communication radio. Various dockets that he had been working on were
in the vehicle. He was not
called out to resume duty at any time that
night or the following morning.
[8] At about 22h00 Mr van Wyk
visited a nightclub with two friends to have a few drinks. Although
he was prohibited from using the
police vehicle for private purposes
he nonetheless used it to drive to the nightclub. He was dressed in
civilian clothes.
[9] Ms F also visited the
nightclub that night in the company of friends. At about midnight she
fell out with one of her friends
and decided to return home. When she
left the nightclub she encountered Mr Van Wyk and his two friends –
Mr Petrus Faniso
and Mr Edward Botha. There is a slight lack of
clarity in the evidence on this point (which is not really material)
but I accept
that the three men were standing alongside the vehicle
when Ms F first saw them and that she then joined them and they stood
talking
for a while. Ms F did not know Mr van Wyk but she was
casually acquainted with Mr Faniso. Ms F said that while they were
talking
she noticed ‘from the corner of her eye’ that the
vehicle was equipped with a radio of the kind that is used by the

police. When asked what was troubling her she told the men that she
had fallen out with her friend and that she wanted to go home
and one
of the men said that they would drive her home.
[10] They all left in the
vehicle. First Mr Botha was dropped off, then Mr Faniso. When Mr
Faniso was dropped off Ms F, who had
been seated in the rear, moved
to the front passenger seat. Ms F was then alone in the vehicle with
Mr van Wyk. Mr van Wyk told
her that he wanted to drive to Kaaimans
to see if friends of his were there and they set off in that
direction. Ms F said that
he stopped the vehicle at a place that was
dark – apparently in the vicinity of Kaaimans. She felt that
‘something
was wrong’ and she leapt from the vehicle and
hid herself. Mr van Wyk drove off. After a while Ms F returned to the
road
hoping to flag down a passing vehicle. A little later Mr van Wyk
returned. Pretending not to know her he asked what she was doing

there. She replied that he knew very well why she was there and she
told him that he must take her home, which he undertook to
do. Once
more she entered the vehicle and they drove in the direction of
George. Shortly before they reached George he suddenly
turned off the
road. Ms F tried to leap from the vehicle but Mr van Wyk restrained
her. He then stopped the vehicle and assaulted
and raped her.
Afterwards he drove her to her home in George, threatening her with
harm if she disclosed what had occurred. Later
that morning Ms F
reported the events to her mother, the police were informed, and Mr
van Wyk was arrested.
[11] There are further aspects of
the evidence of Ms F that I need to deal with specifically. I have
said that there were police
dockets in the vehicle. There is a
suggestion in one part of the evidence of Ms F, in answer to an
ambiguous question, that she
observed the dockets before she first
entered the vehicle. But I think it is clear from other parts of her
evidence that she noticed
the dockets only later. According to Mr van
Wyk the dockets were at first on the floor at the foot of the front
passenger seat.
He said that when Mr Faniso was dropped off he took
them from the floor and placed them at the foot of the rear seat
before Ms
F took her place in the front passenger seat. From the
evidence as a whole, seen in the sequence within which events
occurred,
I think it is probable that Ms F saw them only then.
[12] Ms F said that in reply to
her query relating to the dockets Mr van Wyk told her that he was a
‘private detective’,
which she understood to mean that he
was a police officer. Mr van Wyk denied that he had told her that he
was a ‘private
detective’ but I accept her evidence in
that regard, and I accept that she understood that to mean that he
was a policeman.
Ms F was not able to say precisely when on the
journey this occurred. But I think it can be inferred that it was
probably shortly
after the two men had been dropped off and while
they were driving to Kaaimans, which is consistent with the finding
of the court
below.
[13] Although Ms F said that she
noticed the police radio before she first entered the vehicle I agree
with the finding of the court
below that ‘on the probabilities
when [Ms F] first accepted a lift from Van Wyk the fact that he was
or may have been a police
officer played no role in her decision’.
In a statement that she made to the police on 15 October 1998 there
was no suggestion
that she entered the vehicle in the belief that Mr
van Wyk was a policeman nor was that suggested in her evidence in
chief. In
cross-examination it was put to her that the reason that
she had entered the car was that she knew Mr Faniso to which she
replied:
‘I think so’. It was also put to her more than
once that it was not because she thought Mr van Wyk was a policeman
that she had entered the vehicle to which she consistently answered
that she could not remember. If she had indeed been motivated
to
enter the vehicle by a belief that he was a policeman I have no doubt
that her evidence would have been explicit in that regard.
[14] But by the time they reached
Kaaimans she was indeed aware that he was a policeman (for the
reasons I have given). Ms F said
that she entered the car on that
occasion because she ‘trusted’ him because he was a
policeman. No doubt her knowledge
that Mr Van Wyk was a policeman
played some role in her decision but I do not think it can be
inferred from her evidence that Ms
F would not otherwise have done
so. He had already given her good reason to believe that being a
policeman was by itself no guarantee
that he was to be trusted. She
was stranded in the dark well after midnight, with no other apparent
means of getting home, and
she might just as well have accepted his
renewed promise to drive her home even if he had not been a
policeman. Nonetheless, I
accept the conclusion of the court below
that ‘this played a role in her decision to accept
[assistance], in the desperate
circumstances in which she found
herself’.
[15] Vicarious
liability has a long but uncertain pedigree.
3
In essence it
may be described as the liability that one person incurs for a delict
that is committed by another, by virtue of the
relationship that
exists between them. There are two features of vicarious liability in
its traditional form that are trite but
they bear repetition. The
first is that vicarious liability arises by reason of a relationship
between the parties and no more
– it calls for no duty to be
owed by the person who is sought to be held liable nor for fault on
his or her part.
4
The second
feature is that it is a secondary liability – it arises only if
there is a wrongdoer who is primarily liable for
the particular act
or omission. I will return to those features presently.
[16] Vicarious
liability might arise from various relationships but we are concerned
only with the relationship of employment. The
circumstances in which
vicarious liability will arise were described by this court in
Minister
of Law and Order v Ngobo
5
–
with
reference to two cases that it described as ‘lodestars in this
firmament’ (
Mkize
v Martens
6
and
Estate
Van der Byl v
Swanepoel
7
)
– as follows:
‘
The
critical consideration is … whether the wrongdoer was engaged
in the affairs or business of his employer. (I shall refer
to it as
the “standard test” or “general principle”.)
It has been consistently recognised and applied,
though – since
it lacks exactitude – with difficulty when the facts are close
to the borderline’.
8
[17] The
question whether the employee was ‘engaged in the affairs or
business of his employer’ – sometimes expressed
as
whether the employee was acting ‘in the course’ or
‘within the scope’ of his or her employment –
at
the time the delict was committed is often problematic. At one
extreme the delict might be committed by the employee while going

about his or her employment in the ordinary way – in which case
the employer will be liable. At the other extreme the delict
might be
committed by a person who, albeit that he or she is an employee, is
going about his or her own private business, unconnected
to that of
the employer – in which case the employer is not liable.
Between those extremes is ‘an uncertain and wavering
line’.
9
[18] Most of
the decided cases fall somewhere between those extremes. They are
mainly cases in which the employee, starting out
on the business of
the employer, then deviated from the employer’s business to
attend to business of his or her own. An example
is the often-cited
case of
Feldman
(Pty) Ltd v Mall,
10
in which a
delivery driver deviated from his ordinary route to conduct business
of his own, in the course of which he negligently
killed the
respondent’s husband. Notwithstanding that he was not strictly
about the employer’s business when the delict
was committed a
majority
11
held the
employer liable. Elaborating upon whether the employee could be said
to have been engaged upon the business of his employer
Watermeyer CJ
said:
‘
If
the servant’s abandonment of his master’s work amounts to
mismanagement of it or negligence in its performance and
is, in
itself, the cause of harm to third parties, then the master will
naturally be legally responsible for that harm . . ..
If,
on the other hand, the harm to a third party is not caused by the
servant’s abandonment of his master’s work but
by his
activities in his own affairs, unconnected with those of his master,
then the master will not be responsible’.
12
Tindall JA expressed it as
follows:
‘
In
my view the test to be applied is whether the circumstances of the
particular case show that the servant’s digression is
so great
in respect of space and time that it cannot reasonably be held that
he is still exercising the functions to which he was
appointed; if
this is the case the master is not liable. It seems to me not
practical to formulate the test in more precise terms;
I can see no
escape from the conclusion that ultimately the question resolves
itself into one of degree and in each particular
case a matter of
degree will determine whether the servant can be said to have ceased
to exercise the functions to which he was
appointed.’
13
[19]
Minister
of Police v Rabie
14
(decided
before
Ngobo
)
was rather different. It concerned a policeman who was not on duty
but he was nonetheless exercising police powers when he unlawfully

arrested and assaulted Mr Rabie. A majority nonetheless found the
state vicariously liable for his conduct. Jansen JA (writing
for the
majority) said that there were two stages of the enquiry:
15
‘
It
seems clear that an act done by a servant solely for his own
interests and purposes, although occasioned by his employment, may

fall outside the course or scope of his employment, and that in
deciding whether an act of the servant does so fall some reference
is
to be made to the servant's intention . . .. The test is in
this regard subjective. On the other hand, if there is
nevertheless a
sufficiently close link between the servant’s acts for his own
interests and purposes and the business of
his master, the master may
yet be liable. This is an objective test. And it may be useful to add
that according to the
Salmond
test
(cited by Greenberg JA in
Feldman
(Pty) Ltd v Mall
1945
AD 733
at 774):
“
a
master … is liable even for acts which he has not authorized
provided that they are so connected with acts which he has
authorized
that they might rightly be regarded as modes – although
improper modes – of doing them ....”’
[20] It is
commonly accepted that at least one rationale for the existence of
the rule of vicarious liability is that the employer
creates the risk
of harm and should thus be liable when the harm occurs.
16
Having
reiterated what is in effect the standard test later referred to in
Ngobo
the learned
judge in
Rabie
went on to say
‘[our] leading cases mostly deal with deviations by the servant
from his duties at a time he is actively engaged
on his master’s
work,
17
and that the
tests applied in such cases were not wholly apposite to the case
before him. He went on to describe the enquiry that
was called for in
such a case:
‘
In
my view a more apposite approach to the present case would proceed
from the basis for vicarious liability mentioned by Watermeyer
CJ in
Feldman
(Pty) Ltd v Mall
(at
741):
“…
a
master who does his work by the hand of a servant creates a risk of
harm to others if the servant should prove to be negligent
or
inefficient or untrustworthy; that, because he has created this risk
for his own ends he is under a duty to ensure that no one
is injured
by the servant’s improper conduct or negligence in carrying on
his work …”
By approaching the
problem whether [the policeman’s] acts were done “within
the course or scope of his employment”
from the angle of
creation of risk, the emphasis is shifted from the precise nature of
his intention and the precise nature of
the link between his acts and
police work, to the dominant question whether those acts fall within
the risk created by the state.’
[21]
Ngobo
rejected
that part of the reasoning in
Rabie
as clearly
wrong. Kumleben JA pointed to the distinction between the rationale
for a rule and the content of the rule itself, citing
what was said
by Schreiner JA in
Carter
& Co (Pty) Ltd v McDonald
:
18
‘
It
is often useful to examine the reason which probably gave rise to the
rule, in order to discover the rule’s limits, but
the reason,
even if certainly established, is not the same as the rule.’
19
Kumleben JA went on to say that
‘
. . .
whatever
direct
liability
may in certain circumstances attach to an employer as a result of a
risk created by him, this consideration in my opinion
is not a
relevant one to be taken into account when the standard test is to be
applied in order to decide whether the master is
vicariously
liable.’
20
And later,
after referring to a note by Professor Van der Walt
21
dealing with
the subject:
‘
The
writer proceeds to contend that [creation of risk] is the
justification for State liability as a result of unlawful police
conduct and thus for the decision in the
Rabie
case.
This conclusion is reached, one should stress, not on the basis of
vicarious liability, which is the ground of liability pleaded
in the
present case, but as an
independent
source
of State liability.’
22
[22] As for the suggestion that
the test that had been applied in deviation cases was not apposite
Kumleben JA said the following:
‘
If
the standard test is to be accepted as the appropriate one for cases
in which at the relevant time the servant had
deviated
from
the course of his regular employment, it follows, in my view, that
this test applies
ad
eundem
–
indeed
more pertinently – where the servant cannot be said to have
deviated for the reason that he was not even remotely engaged
in his
master's affairs at any relevant stage prior to the commission of the
delict . . .’
23
[23] But while
vicarious liability has traditionally been founded upon no more than
the existence of the employment relationship
– thus directing
the enquiry only to whether the wrongdoer was engaged in the affairs
or business of his or her employer
when the delictual act was
committed – recent cases in Canada and England reflect a
principial shift by introducing into
the enquiry duties on the part
of the employer. Cases in which that has occurred all concern
intentional acts of employees –
which are usually difficult to
conceive as having been committed within the course of the
wrongdoer’s employment (or, on
the ‘Salmond test’
referred to earlier,
24
as being
‘improper modes’ of doing an act authorised by the
employer).
[24] The three
principal cases in that regard were
Bazley
v Curry
25
and
Jacobi
v Griffiths
26
(both in the
Supreme Court of Canada) and
Lister
v Hesley Hall Ltd
27
(in the House
of Lords). They were all cases in which an employee of an institution
of one kind or another sexually abused children
who were in his care.
[25] In
Bazley
a
foundation that operated residential care facilities for the
treatment of emotionally troubled children was held vicariously
liable for the sexual abuse by an employee of children who were under
its care. After reviewing decided cases McLachlin J said:
28
‘
Underlying
the cases holding employers vicariously liable are the unauthorized
acts of employees is the idea that employers may
justly be held
liable where the act falls within the ambit of the risk that the
employer’s enterprise creates or exacerbates’.
The learned
judge concluded:
29
‘
In
summary, the test for vicarious liability for an employee’s
sexual abuse of a client should focus on whether the employer’s

enterprise and empowerment of the employee materially increases the
risk of the sexual assault and hence the harm. The test must
not be
applied mechanically, but with a sensitive view to the policy
considerations that justify the imposition of vicarious liability
–
fair and efficient compensation for wrong and deterrence. This
requires trial judges to investigate the employee’s
specific
duties and determine whether they gave rise to special opportunities
for wrongdoing. Because of the peculiar exercises
of power and trust
that pervade cases such as child abuse, special attention should be
paid to the existence of a power or dependency
relationship, which on
its own often creates a considerable risk of wrongdoing’.
[26]
Jacobi
,
on the other hand, concerned an employee of a children’s club,
who sexually assaulted children of the club, but at the employee’s

home and outside working hours. A majority held the club not to be
vicariously liable. Following the ‘creation of risk’

approach adopted in
Bazley
Binnie
J pointed out that to justify imposing liability on that basis there
must be a strong connection between the created risk
and the wrongful
act, which was held to be absent.
30
‘
To find
a strong connection’, the learned judge said, ‘there must
be a material increase in the risk of harm occurring
in the sense
that the employment significantly contributed to the occurrence of
the harm’.
31
[27]
Lister
was decided
along similar lines. In that case the owner and manager of a boarding
house attached to a school was found vicariously
liable for
systematic sexual assaults upon children resident in the boarding
house committed by the warden. Lord Steyn articulated
the approach to
be taken to vicarious liability and then said the following:
32
‘
If
this approach to the nature of employment is adopted, it is not
necessary to ask the simplistic question whether in the cases
under
consideration the acts of sexual abuse were modes of doing authorised
acts. It becomes possible to consider the question
of vicarious
liability on the basis that the employer undertook to care for the
boys through the services of the warden and that
there is a very
close connection between the torts of the warden and his employment.
After all, they were committed in the time
and on the premises of the
employers while the warden was also busy caring for the children’.
[28] As
Watermeyer CJ said in
Feldman
,
33
the rationale
underlying the imposition of liability for ‘risk creation’
is that by creating the risk of harm the employer
has a duty to
ensure that the harm does not eventuate. Because he has created the
risk for his own ends
‘
he
is under a duty to ensure that no one is injured by the servant’s
improper conduct or negligence in carrying on his work
and that the
mere giving by him of directions or orders to his servant is not a
sufficient performance of that duty’.
[29] While
‘risk creation’ might indeed be capable of giving rise to
liability on the part of the employer, it was said
in the passage
from
Ngobo
to which I
referred earlier,
34
that the true
basis for liability in such cases is the failure of the employer,
acting through the instrument of the employee, to
fulfil the duty
that is cast upon the employer to avoid harm occurring through the
risk that has been created. For on the traditional
approach vicarious
liability arises from the existence of the relationship alone and not
from any failure of duty by the employer.
But adopting the approach
in those cases I cannot see that any material risk was created by the
state in this case – and
least of all that there was a ‘strong
connection’ between the delict and such risk as might have been
created.
[30] But the
introduction into the principle of vicarious liability of a duty owed
by the employer was taken a step further in
K
.
Adopting the ‘two-stage’ enquiry that was laid down in
Rabie
,
O’Regan J said that the first question ‘requires a
subjective consideration of the employee’s state of mind
and is
a purely factual question’.
35
Needless to
say, the state of mind of the policemen in that case, as it was in
this case, was entirely self-directed, and the case
turned rather on
the second ‘objective’ question, namely, ‘whether,
even though the acts done have been done
solely for the purpose of
the employee, there is nevertheless a sufficiently close link between
the employee’s acts for his
own interests and the purposes and
the business of the employer’. That question, said the learned
judge
‘
does
not raise purely factual questions, but mixed questions of fact and
law. The questions of law it raises relate to what is ‘sufficiently

close’ to give rise to vicarious liability. It is in answering
this question that a court should consider the need to give
effect to
the spirit, purport and objects of the Bill of Rights.’
36
[31] The
learned judge pointed out that the rape of K was ‘clearly a
deviation from their duties’ but went on to observe
that when
committing the rape the three policemen were ‘simultaneously
omitting to perform their duties as policemen’,
which was said
to be ‘relevant to answering the . . . question . . .
was there a sufficiently close connection
between that delict and the
purposes and business of the employer’. She then listed three
considerations
37
that had
founded her conclusion.
38
First, that
‘
the
policemen all bore a statutory and constitutional duty to prevent
crime and protect the members of the public. That duty is
a duty
which also rests on their employer and they were employed by their
employer to perform that obligation’.
Secondly
‘
in
addition to the general duty to protect the public, the police here
had offered to assist the applicant and she had accepted
their
offer’.
And thirdly,
‘
the
conduct of the policemen which caused harm constituted a simultaneous
commission and omission. … Their simultaneous omission
lay in
their failing while on duty to protect her from harm, something which
they bore a general duty to do, and a special duty
on the facts of
this case’.
The learned judge then concluded:
‘
In
my view, these three inter-related factors make it plain that viewed
against the background of our Constitution, and, in particular,
the
constitutional rights of the applicant and the constitutional
obligations of the respondent, the connection between the conduct
of
the policemen and their employment was sufficiently close to render
the respondent liable.’
[32] There are
three observations to make in relation to those findings. The first
is that the court found that both the state,
and the policemen
personally, were under a duty to protect K, and that they omitted to
fulfil those duties. It follows that in
acting as they did the
policemen committed two separate delicts – one was their
positive delictual act of assaulting K, and
the other was their
delictual omission in failing to protect her. The second observation
is that I think the inference is clear
from the three reasons that
were advanced by the learned judge that the delict for which the
state was held liable was not the
positive acts of the policemen –
for otherwise their omissions would have been immaterial – but
instead their delictual
omissions. And the third observation is that
the conclusion in that case was expressly founded upon vicarious
liability for the
delicts of the policemen
39
–
and
not upon direct liability of the state – from which it follows
that the policemen must have been considered to be personally
liable
for their omissions (for otherwise there would have been no scope for
vicarious liability).
[33] In his
insightful commentary on the case Stephen Wagener
40
has expressed
the view that the court ‘confused personal and vicarious
liability’ and that ‘[a] breach of an employer’s

duties, in this case the state’s alleged constitutional ones,
can only affect its personal liability’. Later he says
that
‘logically, the Bill of Rights can only affect personal
liability outcomes, and is irrelevant to vicarious liability’.
41
[34] I think
that criticism is only partly correct. I have pointed out that both
the state, and the policemen personally, were held
to be under a duty
to protect K. In those circumstances it might be that the court could
justifiably have found that the state,
acting through its employees,
was directly liable for its own delictual omission. That would have
been consistent with a line of
cases that have been decided in this
court (
Minister
of Safety and Security v Van Duivenboden,
42
Van Eeden v
Minister of Safety and Security,
43
Minister of
Safety and Security v Hamilton,
44
and
Minister
of Safety and Security v Carmichele
45
)
that purport to be founded upon vicarious liability, but might better
be said to have been founded upon direct liability of the
state,
acting through the instrument of its employees.
46
In an
illuminating article François du Bois
47
construes
those cases as reflecting
‘
[a]
subtle but vital shift . . . in which state liability is no
longer viewed in terms of the traditional vicarious liability

paradigm of the common law model, but rather, á la civilian
systems, as a form of direct liability arising from an organizational

failure or
faute
de service.’
He describes them as representing
‘a further rupture in historical link to the common law
tradition with its failure to develop
a distinctive notion of the
state and its mission’. Elaborating he says that they concern
themselves
‘
with
the duties of the
state
and
the need for holding
government
accountable for breaches rather than with the question whether the
individual official has committed the delict’.
[35] But I have pointed out that
the court found that not only the state, but also the policemen
personally, were under a duty that
they omitted to fulfil. In view of
its express finding of vicarious liability it must be taken that the
policemen were considered
to be personally liable for their
omissions, thus rendering the state vicariously liable, albeit that
it might equally have held
the state to be directly liable for its
own omission. In this case, too, we are concerned with whether the
state is vicariously
liable for delictual conduct on the part of Mr
Van Wyk, and not with whether the state is directly liable.
[36] Clearly Mr Van Wyk is liable
for the consequences of his positive delictual acts (as the policemen
were liable for the consequences
of their positive acts in
K
).
But as I have already observed I think the inference from the
findings in K is that the state was considered not to be vicariously

liable for the positive delictual acts of the policemen in that case
– for if it was vicariously liable for those positive
acts then
the omissions would have been immaterial.
[37] If the
state was not vicariously liable for the positive delicts of the
policemen in
K
then I think
that, a fortiori, it is not vicariously liable for the positive
delict that was committed by Mr Van Wyk. Indeed, it
would seem to me
to be rather extreme to find that a policeman is ‘engaged in
the affairs or business of his employer’
48
when he
commits the crime of rape, or that that could ‘rightly be
regarded as a mode – although an improper mode’
of
exercising the authorisation conferred by his employment.
49
In the words
of Kumleben JA in
Ngobo
,
Mr Van Wyk ‘cannot be said to have deviated [from his
employer’s business] for the reason that he was not even
remotely
engaged in his master's affairs at any relevant stage prior
to the commission of the delict.’
50
Or as
Watermeyer CJ would have said it,
51
the harm was
‘not caused by the servant’s abandonment of his master’s
work but by his activities in his own affairs,
unconnected with those
of his master’. Or in the words of Tindall JA,
52
‘
his
digression from the business of his employer was so great in respect
of space and time that it cannot reasonably be held that
he [was]
still exercising the functions to which he was appointed.’
[38] Three factors that were
considered by the court below to be indicative of vicarious liability
– seemingly for that positive
act (the other considerations
taken account of, which I will come to, were directed to the alleged
omission) were, first, that
Mr Van Wyk was in possession of a police
vehicle, which, the court said, provided him with the means to commit
the offences (this
was said by the court below to be the ‘single
most important connection’). Secondly, that the discovery by Ms
F that
Mr Van Wyk was a police officer ‘to some extent . . .
operated to lull her suspicions’. And the third consideration

was what the court described as ‘the coincidence between the
nature of the assistance which Van Wyk pretended to offer . . .

and the normal duty of a police official’.
[39] That an
employee uses property of the employer might in some cases indicate
that he or she is about the business of the employer
but I think that
is no more than an evidentiary factor. In this case it is clear that
Mr Van Wyk was not engaged on police business
at the relevant time
and I do not see that his unauthorised use of his employer’s
property is then relevant.
53
I might add
that in
Ngobo
the delict was
committed directly by the use of a service firearm yet that was not
considered to be significant. That Ms F might
have relied upon the
fact that Mr Van Wyk was a police officer also does not seem to me to
assist: I do not think the question
whether an employee is about the
business of an employer can be dependant upon whether the victim
knows or does not know that he
or she is an employee. And the fact
that Mr Van Wyk’s offer to drive her home coincided with what
might be expected from
a police officer also does not seem to me to
take the matter further when in fact the offer was not made in
fulfilment of police
functions.
[40] I might
add that all those factors – in accentuated form – were
also present in
K
yet
they were not sufficient to expose the state to liability for the
positive acts of the policemen concerned. In that case the
vehicle,
which announced itself openly to be a police vehicle, was being used
by the policemen to go about their official business,
from which they
then diverted. In that case
K
knew full well
that they were policemen and that they were on police duty when she
accepted their offer. And in that case the assistance
that they
offered did not merely coincide with what could be expected of a
policeman – they were doing precisely what their
police duties
required.
54
[41] Turning
to the omissions that were found to exist in
K
I have no
doubt that the state had a duty to protect Ms F against harm and that
that duty necessarily falls upon functionaries who
execute the duties
of the state – which might render the state directly liable if
its functionaries omit to do so. But the
basis for the finding in
K
was that the
policemen were also under an equivalent personal duty – thus
rendering them personally liable (and the state
vicariously liable) –
for omitting to fulfil that duty. It seems to me, then, that what
this case comes down to is whether
Mr Van Wyk was under a similar
duty at the time he committed his criminal act. And that depends upon
whether the duties that were
held to exist in K persist when a police
officer is not on duty.
[42] There is
some suggestion in the judgment of the court below that a police
officer is never off duty – that his or her
obligations are of
a ‘continuing nature’ – and that was said to be
supported by the decision of the trial court
in
Rabie
.
55
It was also
suggested that a police officer who is on ‘standby duty’
is not off duty at all but is on duty in an attenuated
form. The
court below expressed that as follows:
‘
In
my view it would be mistaken to see only a sharp distinction between
being on and off duty and then to treat Van Wyk as being
off duty.
His status as being on stand-by at the material time fell rather
somewhere between these states.’
Various shades of those
suggestions also surfaced in argument before us. I do not think they
are correct.
[43] Neither
in the evidence of Mr Du Toit nor in the standing orders do I see the
presence of any of the characteristics of employment
56
while a
detective is between shifts. Until such time as a detective is called
upon to resume duty he or she is not subject to the
control or
direction of his or her employer – the detective is free to
engage at will in hobbies or to go about his or her
personal affairs.
The only obligation is to resume duty when called upon to do so –
thereby reverting to the control and
direction of the employer –
just as the detective is obliged to do so when the next shift
commences. That the scope of his
or her private activities are
attenuated during that time is no more than a concomitant of the
uncertainty that exists as to whether
he or she might be required to
resume duty. The detective may not drink alcohol, for example, not so
as to be sober while going
about his or her personal business, but so
as to be sober if called upon to resume duty, just as a detective
must not drink at
7.00 in the morning so as to be sober when resuming
duty at 7.30. In my view ‘standby duty’ as described in
the evidence
is precisely what the language conveys – a
detective is on standby to resume duty if duty calls and is off duty
until that
occurs.
[44] I also see no basis for
finding that the obligations of a police officer are of a ‘continuing
nature’. What does
continue when a police officer goes off duty
is his or her authority to exercise police powers. The
Criminal
Procedure Act 51 of 1977
, for example, confers upon peace officers,
by virtue of their appointment alone, the authority to arrest without
warrant, whether
the police officer is on or off duty. That police
officers are entitled to exercise police powers when they are off
duty does not
imply that they are obliged to do so.
[45] In his
evidence Mr Du Toit said that even when not on duty a police officer
must intervene when he or she encounters a crime
that is being
committed and ‘automatically puts himself on duty’ when
he or she does so. I have no doubt that many
police officers consider
it their duty to exercise their police powers whenever they encounter
crime and that is meritorious. But
we are concerned in this case not
with what is meritorious but instead with whether they are legally
obliged to do so. I can see
no grounds for finding that a police
officer is obliged to perform his or her ordinary functions when not
on duty. Indeed, I think
that the consequences of such a finding
would be far-reaching indeed. Its effect would be to make the state a
guarantor of good
behavior on the part of police officers at all
times by virtue alone of their appointment. Without a duty to protect
Ms F against
harm – and thus personal liability for omitting to
do so – there is no scope for secondary liability of the state
for
the omission to protect Ms F. And while a police officer who
chooses to exercise police powers might render the state vicariously

liable for delicts committed in the course of doing so – which
was the case in
Rabie
and in
Minister
of Safety and Security v Luiters
57
–
Mr Van
Wyk did not purport to be exercising police powers in this case.
[46] There was
one further factor that was considered by the court below to
strengthen its conclusion. Applying what it described
as the
‘contentious “creation of harm” approach
articulated by Jansen JA’ in
Rabie
,
the court concluded that by retaining Mr Van Wyk in its employ
notwithstanding that he had criminal convictions
58
the state
‘accepted the risk that his propensity for criminal conduct
might continue and cause harm to others’.
[47] It might
not have been brought to the attention of the learned judge that
Rabie
was later
reversed by
Ngobo
on that point
(although the idea is far from dead, as appears from the foreign
cases I have referred to
59
).
But I
think that the view expressed by the court below in that regard draws
attention to the pitfalls of introducing concepts of
duty into the
doctrine of vicarious liability. For the question that it inevitably
raises – as it does on the view taken
by the learned judge –
is whether the breach of duty is causally connected to the delict –
an enquiry that does not
fit easily into vicarious liability. If the
state ought indeed not to have retained Mr Van Wyk in its employ
because he had been
convicted of crimes, and its breach of its duty
in that regard was causally connected to the offence, then I think
that might render
the state directly liable for breach of its own
duty. But I cannot see how it is material to determining whether it
is vicariously
liable.
[48] In my view this case fails
the test for vicarious liability that was articulated in
K.
It
seems to me that upon proper analysis the finding of liability in
that case was founded upon the personal liability of the policemen

concerned – and consequently the vicarious liability of the
state – for omitting to fulfil their constitutional and

statutory police duty and Mr Van Wyk had no such police duty in this
case. (I think it is important to add that because Mr Van
Wyk was not
purporting to act as an instrument of the state at the time he
committed his crime the state could equally not have
been found
directly liable had the case been advanced along those lines.)
[49] For those reasons I would
uphold the appeal. Because this case raises an important principle of
broader significance for the
state I do not think that the respondent
should pay the costs in this court or in the court below. The orders
of the court below
so far as they relate to the appellant (first
defendant in the court below) are set aside and the following is
substituted:
‘
The
claim against the first defendant is dismissed’.
_____________________
R W NUGENT
JUDGE OF APPEAL
MAYA JA (BOSIELO JA concurring)
[50] I am indebted to my
colleague, Nugent JA, for the benefit of his judgment. After much
thought and vacillation, I find myself
respectfully unable to agree
with his conclusion. The salient facts are set out fully in his
judgment and they need not be dealt
with in any great detail.
[51] As I see the case, the
fundamental issue is whether the Minister of Safety and Security is
vicariously liable for delictual
damages flowing from a rape
committed by a police officer whilst on standby duty.
[52] The court below found that
Mr Allister Van Wyk, who was a police detective in the South African
Police Service at the time
(he was dismissed from the police force
after his conviction), had acted in his capacity as a police officer
when he committed
the assault and rape and consequently held the
Minister vicariously liable for his conduct. In reaching this
conclusion, the court
below, inter alia, made strong credibility
findings in favour of the victim, Miss F, and attributed the
occasional vagueness in
her evidence to the trauma of her brutal
attack and her tender age (she was 13 years old) at the time of the
incident.
[53] Van Wyk’s evidence
was, however, found wanting. In the court’s view, it was ‘false
and self-serving’
and Van Wyk’s seeming candidness
regarding the rape act itself was, by his own admission, born out of
sheer necessity as
he had already been convicted of the rape which he
had denied at his trial. The court then preferred F’s version
of the events
where it conflicted with that given by Van Wyk. I have
found no reason to depart from the court’s assessment of these
witnesses
and its reasoned findings in that regard. I would merely
add that the hiatus of some 11 years between the rape incident and
the
criminal trial must have contributed to F’s uncertainty on
some of the fine detail of the events.
[54] There was no dispute around
the key facts ie that F was assaulted and raped at an isolated, dark
spot around midnight by Van
Wyk after she accepted a lift home from
him at a nightclub. Van Wyk was on standby duty and wore plain
clothes. He was driving
an unmarked police vehicle, which he had been
allocated for official duties, for his own private purposes when he
met F and offered
to drive her home.
[55] What appears from F’s
testimony is that she initially agreed to travel in Van Wyk’s
vehicle mainly because Mr Petrus
Faniso, an acquaintance whose family
lived in her block of flats, was a passenger in the vehicle. She
readily recognised the unmarked
vehicle even before accepting the
lift at the nightclub as she stood next to it because it had a police
radio attached to it which
had its power light switched on. She
became aware that Van Wyk was a police officer before accepting his
second offer of a lift
at Kaaimans River. This, she said, happened
when she saw police dockets on the front passenger floor. She could
not recall the
exact stage in the chain of events but, taking Van
Wyk’s evidence in this regard into account, this must have
occurred when
she took the front seat and he put the dockets on the
floor at the back after they left Faniso at his home. When she asked
Van
Wyk why the police dockets which were marked ‘Sgt Van Wyk’
on their covers were in the vehicle, he told her that he
was a
private detective and she understood this to mean that he was a
police officer.
[56] Van Wyk’s
superior at the material time, Mr Du Toit, formerly the Provincial
Commander in charge of General Investigations
in the Western Cape,
testified on the Minister’s behalf. He explained the nature of
‘standby duty’ as follows.
A police officer on the
‘standby duty’ roster was required, in terms of the
relevant standing order of the police
60
to be
‘available at his dwelling’ after the normal 7h30 –
16h00 shift to resume duty at short notice when so required
by the
police service centre. (In practice, however, a normal shift for a
detective on official duty or standby duty extends much
later than
16h00 according to Van Wyk who worked until 20h00 on the fateful day
and Mr Johan van Dyk, another former member of
the Investigations
Unit at George who testified on F’s behalf.)
[57] The officer would be paid an
allowance as compensation for the restriction on his movements and
would be allocated a State
vehicle, for which he signed, but only for
the purposes of enabling him to resume official duty. A police
officer who resumed duty
during the standby period, whether by reason
of being called by the service centre or placing himself on duty, was
required to
record the nature of the official duties performed in his
pocketbook as proof that he had done the work.
[58] Du Toit explained that
because detectives are experienced police officers they are trusted
to be able to work individually
ie not under a superior’s
direct control and can place themselves on and off duty as they see
necessary as long as this is
recorded in the officer’s
pocketbook. According to police procedure, an officer who is not on
duty places himself on duty
automatically by intervening in the
commission of a crime or assuming police duties and whenever a police
officer performs police
duties he is on duty.
[59] Van Wyk, who testified,
confirmed these police procedures. In cross-examination, he was asked
why F got back in his vehicle
on the second occasion and his reply
was
‘
It
was late, it was dark. She was alone by the side of the road …
Because I told her I would take her home.’
He said that the dockets in his
vehicle concerned matters reported earlier that day which he was
investigating and that he took
them with him to prepare for
inspection on the following day. After raping F he completed the
vehicle’s logbook as required
by procedure and falsely ascribed
the mileage he had accumulated during his illicit jaunt to
investigative duties he performed
when he started his shift at 7.30
on 14 October until the end of the standby shift at 7.30 of 15
October. He also recorded the
case numbers of the ‘three
dockets’ as the cases he had been working on during the standby
period and fuelled the vehicle
at a police filling station in the
amount of R45, which was subsequently paid by the State. He stressed
that his objective when
he gave F a lift was to rape and not to help
her. But he conceded that he would have been obliged as a police
officer to take her
home had he been on duty and would in fact have
done so.
[60] This is the essence of the
evidence on which the court below determined the issue of the
Minister’s liability.
[61] The legal
principles underpinning vicarious liability of an employer, including
the State, for the delict of an employee are
firmly established. Put
simply, vicarious liability arises for the employer if the delict is
committed by the employee whilst acting
in the course and scope of
his or her employment or, in other words, whilst engaged in the
affairs or business of his or her employer.
61
[62] The
foundation of the rule is public policy which this court, in
Feldman
(Pty) Ltd v Mall
,
62
said was based
on the fact that because an employer’s work is done ‘by
the hand’ of an employee, the employer
creates a risk of harm
to others should the employee prove to be negligent or inefficient or
untrustworthy. (The ‘risk of
harm’ referred to relates
only to the reason underlying the rule and not its content; it is not
an element of the rule.
63
)
This places an employer under a duty to ensure that no one is injured
as a result of the employee’s improper conduct or
negligence in
carrying on his work.
[63] Our
courts have for many years found applying this rule a complex task as
a result of difficult questions of fact which often
arise especially
in ‘deviation’ cases ie where a rogue employee in pursuit
of his own interests commits a delict whilst
ostensibly engaged in
the affairs of his employer.
64
And
determining whether the State should take responsibility for the
misdeeds of police has proven particularly vexing.
[64] Drawing
from the established common law principles with regard to vicarious
liability as interpreted and applied by our courts
in cases such as
Feldman
65
and
Minister
of Police v Rabie
,
66
the
Constitutional Court has formulated the questions to be asked in
applying the rule in deviation cases as follows in
K
v Minister of Safety and Security
:
‘
The
approach [adopted in
Minister
of Police v Rabie
]
makes it clear that there are two questions to be asked. The first is
whether the wrongful acts were done solely for the purposes
of the
employee. This question requires a subjective consideration of the
employee’s state of mind and is purely a factual
question. Even
if it is answered in the affirmative, however, the employer may
nevertheless be liable vicariously if the second
question, an
objective one, is answered affirmatively. That question is whether,
even though the acts done have been done solely
for the purpose of
the employee, there is nevertheless a sufficiently close link between
the employee’s acts for his own
interests and the purposes and
the business of the employer. This question does not raise purely
factual questions, but mixed questions
of fact and law. The questions
of law it raises relate to what is ‘sufficiently close’
to give rise to vicarious liability.
It is in answering this question
that a court should consider the need to give effect to the spirit,
purport and objects of the
Bill of Rights.’
67
(The court
acknowledged the subsequent criticism levelled against the majority’s
adoption of ‘creation of risk’
as a factor relevant to
the determination of vicarious liability in
Rabie
but
pointed out that its statement of the standard test was not directly
criticised.)
[65] The court below found that
the Minister was vicariously liable mainly because (a) Van Wyk drove
a police vehicle officially
assigned to him and used it to commit the
rape, (b) F formed a belief that he was a police officer before
accepting his second
offer of a lift and this lulled her suspicions
and (c) the nature of the assistance Van Wyk pretended to offer
coincided with the
normal duty of a police officer to protect members
of the public even when off-duty. The court also found it relevant
for the enquiry
that Van Wyk was on standby duty, which it termed an
‘attenuated form of duty’ falling ‘rather somewhere
between’
being on and off-duty.
[66] I must
say at the outset that I do not understand our law to impose a duty
on police officers to protect members of the public
and prevent crime
even when not on official duty. And our common law has not been
developed to the extent that the State is answerable
for delicts
committed by off-duty police officers. Neither do I attach any
significance to the fact that Van Wyk was on standby
duty. In my
view, he effectively remained off duty until summoned to resume duty
or took action that placed him on duty as explained
by Du Toit. It is
well to bear in mind in the latter regard that for purposes of
vicarious liability, there is no distinction between
on-duty police
officers and those who are off-duty but place themselves on official
duty; they are in the same legal position.
68
[67] Regarding
the first stage of the test set out in
K
,
there is no question that Van Wyk’s conduct in raping F had
nothing whatsoever to do with the performance of his duties
as a
police officer. But the enquiry goes further. It must still be
considered whether despite the fact that Van Wyk’s unlawful

conduct was totally self-serving, there nevertheless was a
sufficiently close link between his acts for his own personal
gratification
and the State’s business.
[68] Contrary to the finding of
the court below in this regard, I do not accept that Van Wyk
attempted to hide the fact that he
was a police officer. He did not
conceal the radio in the vehicle, which, according to F, was switched
on and which he conceded
could be recognised as a police radio by any
person near the vehicle. This piece of equipment clearly marked the
vehicle as belonging
to the police force to anyone who cared to
notice. That he had removed the police radio aerial from the vehicle,
as he testified,
was not done in an effort to hide the vehicle’s
identity. He said that cars were frequently burgled at the nightclub
premises
and that he removed the aerial only to prevent it from being
stolen as it was merely screwed on the vehicle and would be easy to

steal.
[69] More importantly, he told F
that he was a detective, albeit a private one. He gave that
explanation as a reason for the presence
in his vehicle of police
dockets which were casually placed in the vehicle, in clear view of
passengers, and conspicuously bore
the rank and name of a police
officer (this is the very information F subsequently gave the police
which enabled them to trace
and promptly apprehend him). This
conduct, in my view, cannot be reconciled with an intention to hide
his official identity.
[70] Unlike my colleague Nugent
JA, I find it quite pertinent that F was aware that Van Wyk was a
police officer when she accepted
Van Wyk’s second bogus offer
to take her home at Kaaimans and I agree with the court below that
this knowledge influenced
her decision and quelled her earlier
misgivings. This state of mind is plain from her words
‘
I
found out [that he was a policeman] during the evening before the
rape …He told me …when I asked him why the [police

dockets] were in the car … I went with him because he said he
was a detective because I trusted him because he was a detective
…
I thought he was a policeman…And the police radio that was in
the car.’
69
[71] As I
understand the court’s reasoning in
K
,
it was a relevant factor that the victim there identified the
policemen by their uniform and the marked police van they drove
and
for that reason, placed her trust in them and accepted their lift
even though she did not know them. The court said:
70
‘
[I]n
addition to the general duty to protect the public, the police here
had offered to assist the applicant and she had accepted
their offer.
In doing so, she placed her trust in the policeman although she did
not know them personally. One of the purposes
of wearing uniforms is
to make police officers more identifiable to members of the public
who find themselves in need of assistance.’
At para 57 of the same judgment,
the court continued:
‘
In
sum, the opportunity to commit the crime would not have arisen but
for the trust which [K] placed in them because they were policemen,
a
trust which harmonises with the constitutional mandate of the police
and the need to ensure that mandate is successfully fulfilled.’
[72] It seems to me that if the
purpose of a police uniform is to enable members of the public who
need assistance to readily identify
the police, then, by parity of
reasoning, the same must apply to a marked police vehicle. But in
this case, it did not matter that
van Wyk wore plain clothes and
drove a vehicle which did not bear police insignia. He practically
identified himself as a police
officer and F placed her trust in him
for that reason; a result which he most likely anticipated.
[73] Thus, by
offering to rescue and take home in a police vehicle a lone,
vulnerable child stranded on a dark, deserted riverside
in the dead
of night in those circumstances, Van Wyk subjectively placed himself
on duty and acted in his capacity as a police
officer. This is
regardless of his intention which I find no different from that of
the errant, off-duty, officer in
Rabie
who,
actuated purely by malice, arrested a person he very well knew was
innocent. As the learned judge below pointed out and Van
Wyk himself
conceded as previously stated, such conduct is precisely what would
be expected of a police officer in that kind of
situation. In my
opinion, he placed himself on duty as he was empowered to do by law.
And once he did, he assumed the status and
obligations of an on-duty
police officer. For that reason, I would find the Minister
vicariously liable.
[74] Finally, there is another
matter that, in my view, requires comment. It transpired in the trial
that Van Wyk has a criminal
record. He was initially convicted of
assault with intent to do grievous bodily harm. Thereafter, he was
convicted of the negligent
discharge of a firearm whilst under the
influence of alcohol or narcotic drugs. A further conviction for
common assault followed.
All these convictions occurred during his
career in the police force and they do not seem to have hindered his
rise within the
police ranks as he became a detective vested with
vast police powers and limited control by his superiors. More
disconcerting was
a statement made by Du Toit when asked if he was
surprised that an officer with Van Wyk’s sullied track record
was kept in
the police force, that ‘there are guys that have
done worse things that have stayed on in the [police] service’
and
that it is only when a police officer has been declared unfit to
carry a firearm that he will not be put on operational duties.
[75] I do not agree with the
erroneous elevation by the court below of the apparent risk of harm
created by the Minister, in keeping
a police officer of Van Wyk’s
questionable calibre in the police force, to an element of the
vicarious liability rule. But
I share the sentiments the court below
expressed that it should not be a matter for surprise for the
Minister that Van Wyk, who
had no vehicle of his own and would most
probably not have committed the rape had he not been provided with a
vehicle as he would
have been unable to give F a lift, acted as he
did.
[76] In
K
,
71
the
Constitutional Court exhorted our courts to ‘take account of
the importance of the constitutional role entrusted to the
police and
the importance of nurturing the confidence and trust of the community
in the police in order to ensure that their role
is successfully
performed’. In
Luiters
,
72
the court
reiterated the Minister’s responsibility ‘to ensure that
police officers are properly trained and carefully
screened to avoid
the risk that they will behave in a completely improper manner’.
I find it inimical to these objectives
that our police force would,
seemingly as a matter of course, have within its ranks police
officers who have repeatedly committed
serious crimes.
[77] I would accordingly dismiss
the appeal.
__________________
MML MAYA
JUDGE OF APPEAL
APPEARANCES:
For
appellant: R T Williams SC
J
van der Schyff
Instructed
by:
The
State Attorney, Cape Town
The
State Attorney, Bloemfontein
For
respondent: L M Olivier
Instructed
by:
De
Klerk & Van Gend, Cape Town
Symington
de Kok, Bloemfontein
1
[2005] ZACC 8
;
2005
(6) SA 419
(CC).
2
The
quantum of damages was separated from the question of liability and
the court made a declaratory order that the State was
liable. It
also declared that Mr Van Wyk was personally liable but there is no
appeal against that order.
3
See
J Neethling, J M Potgieter and P J Visser
Law of Delict
5 ed
(translated and edited by J C Knobel) pp 338-339; R G McKerron
The Law of Delict
7 ed pp 89-90; Harmut Wicke ‘Vicarious
Liability in Modern South African Law’ (thesis presented in
partial fulfillment
of the requirements for the degree Master of Law
at the University of Stellenbosch) February 1997; John G Fleming
The
Law of Torts
9 ed 409-411.
4
Fleming,
above, at 412, expresses it as follows: ‘According to the
generally accepted modern view, the master’s liability
is
genuinely vicarious and not based on any “constructive”
fault of his own . . .. That this is the true
nature of
vicarious liability has not been seriously doubted in modern times
. . .’.
5
[1992] ZASCA 172
;
1992
(4) SA 822
(A).
6
1914
AD 382.
7
1927
AD 141.
8
At
827B.
9
Andrews
J in
Palsgraf v Long Island Railroad Company
59 ALR 1253
cited by Watermeyer CJ in
Feldman (Pty) Ltd v Mall
1945 AD
733
at 750
.
10
Above.
11
Watermeyer
CJ, Tindall JA, Davis AJA and Fischer AJA, Greenberg JA dissenting.
12
At
742.
13
At
756.
14
1986
(1) SA 117
(A).
15
At
134C-F.
16
See,
for example, Neethling et al, above, pp 338-339; Wicke, above, pp
8-9.
17
At
134F-G.
18
1955
(1) SA 202
(A) at 211H.
19
At
831G.
20
At
832E-G.
21
‘
Die
Staat se Aanspreeklikheid vir Onregmatige Polisieoptrede’
(1988) 51
THRHR
515.
22
At
833F-G.
23
At
830H-J.
24
See
para 19 above.
25
(1999)
174 DLR (4
th
) 45.
26
(1999)
174 DLR (4
th
) 71.
27
[2001] UKHL 22
;
[2002]
1 AC 215
(HL).
28
Para
37.
29
Para
46.
30
Para
78.
31
Para
79.
32
Para
20.
33
Above,
at 741.
34
Para
21.
35
Para
32.
36
Para
32.
37
Upon
analysis I think the three considerations really come down to two:
First, the policemen (and the state) were under a general
duty to
members of the public at large to prevent and protect against crime.
And secondly, because they had offered to assist
K, and she had
accepted, that they owed a special duty to her.
38
Paras
51-53.
39
See,
too, para 58.
40
‘
K
v Minister of Safety and Security
and the Increasingly Blurred Line between Personal and Vicarious
Liability’
(2008) 125
SALJ
673.
41
At
p 677.
42
2002
(6) SA 431
(SCA).
43
2003
(1) SA 389
(SCA) esp paras 17 and 18.
44
2004
(2) SA 216
(SCA) esp paras 35 and 36.
45
2004
(3) SA 305
(SCA) esp para 43.
46
The
principles of vicarious liability were not pertinently addressed in
those cases. With hindsight I must acknowledge that the
reference to
‘vicarious liability’ in the penultimate sentence of
para 22 of
Van Duivenboden
is misplaced. (See the criticism
in that regard by Anton Fagan ‘Reconsidering Carmichele’
(2008) 125
SALJ
659
at 668-670, and Stephen Wagner, above, at
676.) From the reasoning in that case, and the repeated references
to the state ‘represented
by its officials’ I think it
becomes clear that the true basis of liability was direct liability
of the state, acting through
the instrumentality of its officials.
47
‘
State
Liability in South Africa: A Constitutional Remix’ (2010) 25
Tulane
European & Civil Law Forum
139.
48
The
‘standard test’ referred to in
Ngobo
.
49
The
‘Salmon test’ referred to earlier.
50
Ngobo
,
passage cited above.
51
Feldman
,
passage cited above.
52
Feldman
,
passage cited above.
53
Cf
Tindall JA in
Feldman
, above, at 757.
54
See,
too,
Minister van
Veiligheid en Sekuriteit v Phoebus
Apollo Aviation BK
2002 (5) SA 475
(SCA), in which the state was
held not to be vicariously liable notwithstanding that the police
officers were purporting to perform
ordinary police duties.
55
1984
(1) SA 786
(W) at 791E-F.
56
See
Smit v Workmen’s Compensation Commissioner
1979 (1) SA
51
(A) at 61A-H.
57
[2006] ZASCA 11
;
2006
(4) SA 160
(SCA);
2007 (2) SA 106
(CC).
58
He
had been convicted of assault with intent to do grievous bodily
harm, and the negligent discharge of a firearm whilst under
the
influence of alcohol or narcotic drugs.
59
See,
too, J Neethling ‘Risk-creation and the vicarious liability of
employers’
2007 (70)
THRHR
527.
60
SAPS
Circular dated 2 June 1997 issued by the National Commissioner, SAPS
dealing with salary grading systems and criteria for
the payment of
transverse allowances in the South African Police Service.
61
Mkize
v Martens
1914 AD 382
at 390.
62
1945
AD 733
at 741.
63
Carter
& Co (Pty) Ltd v McDonald
1955 (1) SA 202
(A);
Minister
of Law and Order v Ngobo
[1992] ZASCA 172
;
1992 (4) SA 822
(A);
Ess Kay v
Electronics PTE Ltd v FNB of Southern Africa Ltd
2001 (1) SA
1214
(SCA).
64
Phoebus
Apollo Aviation CC v Minister of Safety and Security
2003 (2) SA
34
(CC) para 7.
65
Above,
n 61.
66
1986
(1) SA 117
(A).
67
[2005] ZACC 8
;
2005
(6) SA 419
(CC) para 32.
68
Minister
of Safety and Security v Luiters
2007 (2) SA 106 (CC).
69
Translated
from the Afrikaans text which reads: ‘Ek het dit uitgevind
[dat hy ‘n polisieman is] na lope van die aand,
voor die
verkragting … Hy het dit vir my gese … Hoekom ek ook
saam met hom verder gery het is toe hy se hy is ‘n
speurder
omdat ek hom vertrou het omdat hy ‘n speurder was … Ek
het gedink hy is ‘n polisieman. … En
die polisie radio
wat in die kar was.’
70
At
para 51.
71
Para
52.
72
Para
34.