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[2011] ZACC 37
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F v Minister of Safety and Security and Another (CCT 30/11) [2011] ZACC 37; 2012 (1) SA 536 (CC); 2012 (3) BCLR 244 (CC); (2012) 33 ILJ 93 (CC); 2013 (2) SACR 20 (CC) (15 December 2011)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 30/11
[2011] ZACC 37
In the matter between:
F
…..................................................................................................................
Applicant
and
MINISTER OF SAFETY AND SECURITY
…..................................
First
Respondent
ALLISTER CLAUDE VAN WYK
…............................................
Second
Respondent
and
INSTITUTE FOR SECURITY STUDIES
….................................
First
Amicus Curiae
INSTITUTE FOR ACCOUNTABILITY
IN SOUTHERN AFRICA TRUST
…........................................
Second Amicus
Curiae
TRUSTEES OF THE WOMEN’S LEGAL CENTRE
….............
Third
Amicus Curiae
Heard on : 4 August 2011
Decided on : 15 December 2011
JUDGMENT
MOGOENG J (Moseneke DCJ, Cameron J, Khampepe J, Nkabinde J, Skweyiya
J and Van der Westhuizen J concurring):
Introduction
This
is an application for leave to appeal against the judgment of the
Supreme Court of Appeal.
1
It raises the question whether the Minister of Safety and Security
2
(Minister) should be held vicariously liable for damages arising
from the brutal rape of a thirteen year old girl by a policeman
who
was on standby duty.
In
the determination of that question, the state’s
constitutional obligations to respect, protect and promote the
citizen’s
right to dignity, and to freedom and security of
the person
3
would have to be taken into account. Equally relevant is the
state’s establishment of a police service for the efficient

execution of its constitutional obligations to prevent, combat and
investigate crime, to protect and secure the inhabitants
of the
Republic and their property, and to uphold and enforce the law.
4
The
trust that the public is entitled to repose in the police also has
a critical role to play in the determination of the Minister’s

vicarious liability in this matter.
In
the event of the Minister being held liable, it would be necessary
to ensure that that decision does not effectively give
rise to
state liability for all delictual acts committed by the police.
Parties
The
applicant is Ms F. She was 13 years old at the time of the
delictual act that gave rise to this litigation, and has since

reached the age of majority.
The
first respondent is the Minister. The second respondent is
Mr Allister Claude van Wyk, who was employed
as
a policeman by the South African Police Service
5
(police service) at the time of the attack on Ms F.
Three
amici curiae were admitted. The first is the Institute for Security
Studies, the second is the Institute for Accountability
in Southern
Africa Trust and the third is the Trustees of the Women’s
Legal Centre.
Background
Ms F
went to a nightclub in George on 14 October 1998. In the early
hours of 15 October 1998, she needed, and was offered,
a lift
home by Mr van Wyk, which she accepted. There were two other
passengers in the vehicle. One of them was known to her.
At
the time, Mr van Wyk was on standby duty.
6
This means that he could, at any time of that night, have been
called upon to attend to any crime-related incident if the need

arose. He had been given possession of an unmarked police vehicle
to enable him to discharge any police functions that he might
have
been required to perform whilst on standby duty. It may be added
that he was paid the prescribed hourly tariff for being
on standby
duty. The vehicle was equipped with a police radio, which Ms F
noticed before she accepted the lift from Mr van
Wyk.
When
they left the nightclub, Ms F was seated on the back seat of the
vehicle with one of the other passengers. After the other

passengers had been dropped off at their respective homes, Ms F
moved to the front passenger seat, at Mr van Wyk’s

request. It was then that she saw a pile of police dockets bearing
the name and rank of Mr van Wyk. When she asked him why
there were
police dockets in his vehicle, he replied that he was a private
detective. Ms F understood this to mean that he
was a policeman.
Contrary
to his undertaking to drive Ms F home, Mr van Wyk drove towards
Kaaimansrivier, away from her home. He told Ms F that
he wanted to
see his friends first. This detour caused Ms F to become
suspicious of Mr van Wyk’s true
motives. When they
approached Kaaimansrivier, Mr van Wyk stopped the vehicle
at a dark spot. As a result of her suspicions,
Ms F alighted from
the vehicle, ran away and hid herself from him. After a wait,
Mr van Wyk left.
Ms F
later emerged from hiding, stood next to the road and hitchhiked. A
vehicle stopped next to her. It turned out to be the
same vehicle
she had just alighted from. Mr van Wyk again offered to take
her home. Ms F relented, albeit reluctantly,
owing to her desperate
situation.
In
her evidence, she said that the fact that she believed Mr van Wyk
to be a policeman played a role in allaying her
fears, because she
“trusted” him (hom vertrou) as, at that stage, she
thought he was a detective. She chose to
repose her trust in a
person of whom she was suspicious because she understood him to be
a policeman.
While
on their way to her home, Mr van Wyk unexpectedly turned
off the road near Kraaibos. Ms F attempted to escape
again. This
time Mr van Wyk was able to prevent her from fleeing. He
then assaulted and raped her. Thereafter, he
took her to her home.
In an attempt to secure her silence, he threatened to harm or even
kill her should she report the attack
to anybody.
Despite
these threats, Ms F laid criminal charges against Mr van Wyk.
He was convicted of assault and rape and sentenced
to undergo 12
years’ imprisonment, of which five years were suspended.
In
December 2005, Ms F reached the age of majority. Thereafter she
instituted an action for damages against the two respondents
in the
Western Cape High Court, Cape Town (High Court).
In the High Court
By
agreement between the parties, the merits and the quantum of
damages were separated and the High Court was asked to pronounce

itself only on the merits.
The
Court, per Bozalek J,
7
found the Minister vicariously liable for the damages suffered by
Ms F as a result of Mr van Wyk’s delictual
conduct.
It applied the test laid down in
K v Minister of Safety and
Security
8
and held that there was a sufficiently strong link between
Mr van Wyk’s actions and his employer’s

business to justify the imposition of vicarious liability. It
relied on the following factors in support of its conclusion:
Mr
van Wyk was in possession of a police vehicle. This provided him
with the means to commit the offences and was the “single

most important connection”
9
between the business of the employer and the commission of the
crime.
The
fact that Ms F understood Mr van Wyk to be a policeman to some
extent operated to lull her suspicions that he might be
a danger
to her. In other words, it gave her some basis for trusting Mr van
Wyk, in spite of her suspicions.
The
coincidence between the nature of the assistance that Mr van Wyk
pretended to offer and the normal obligations of members
of the
police service, which is, in particular to protect vulnerable
groups such as women and children.
Bozalek
J was alive to the Minister’s fear that a finding in favour
of Ms F could open the floodgates to the state’s
strict
liability for delictual acts committed by the police. He dealt with
this concern on the basis that the
K
test was sufficiently
flexible to allow a case-by-case determination of the issues. The
Minister took the matter on appeal to
the Supreme Court of Appeal,
which reversed the High Court decision for the reasons set out
below.
In the Supreme Court of Appeal
Nugent JA, writing for the majority,
10
held that the state was not liable because—
The
conclusion in
K
that the state was liable was based only on
the delictual omission of the on-duty policemen involved.
An
intentional delictual commission like rape cannot attract the
state’s vicarious liability. Accordingly,
K
, properly
understood, held that the state was not vicariously liable for the
positive delictual acts of the police officials,
but only for
their acts of omission. And the same should obtain in this case.
Because Mr van Wyk was not on duty,
11
he, unlike the policemen in
K
, could not be considered to
have been engaged in the business of the police service and to
have breached his duty to protect
Ms F when he committed the rape.
An
off-duty police official has no duty to protect members of the
public and cannot therefore be held personally liable for
his or
her failure to protect a victim of crime from the harm that occurs
in his or her presence. This is so because the
police do not have
an ongoing duty to protect members of the public. And in the
absence of a duty on Mr van Wyk to protect
Ms F from harm while he
was off duty, there could be no personal liability on him for
omitting to do so.
The
majority’s reasoning was thus based on an understanding that
the finding of vicarious liability in
K
was premised only on
the fact that the policemen in that case had committed a delict of
omission. This they did by failing
to protect Ms K while they were
on duty and under an obligation to do so.
The
majority judgment rejects any notion that a policeman could be said
to be “engaged in the affairs or business of his
employer”
12
when he commits rape or that rape could even be
regarded as an “improper mode”
13
of exercising the authority conferred on him by
his employer.
14
The majority also reasoned that the positive
delictual act of rape was not one of the bases for the outcome in
K
. That
is how the majority judgment distinguished
K
from this case. The decision of the High Court
was, for these reasons, set aside.
Maya
JA, writing for the minority,
15
said that although the rape had nothing to do with the performance
of Mr van Wyk’s official duties, there was
a
sufficiently close link between his acts for personal gratification
and the business of the police service. Ms F was induced
to trust,
and accept a lift from, Mr van Wyk because he was a
policeman. The minority found that he had placed himself
on duty
when he undertook to take Ms F home.
The
minority observed that policy considerations underpin vicarious
liability in matters of this kind. These include the employer’s

duty to ensure that no one is injured as a result of the employee’s
improper conduct or negligence in carrying out his
or her duties.
The
test formulated in
K
was accepted as being applicable to
deviation cases.
16
The minority would, applying that test, have found for Ms F.
Issues
There
are three preliminary issues and one substantive issue to be
addressed. The preliminary issues are:
Condonation
for the late filing of the application for leave to appeal.
Condonation
for the late filing of the Minister’s written submissions.
The
application for leave to appeal.
The
substantive issue is whether the state is vicariously liable for
damages arising from the rape of a young girl committed
by a
policeman who was on standby duty.
Condonation: leave to appeal
It
is now trite that condonation will be granted if it is in the
interests of justice to do so, and if there appear to be reasonable

prospects of success on appeal. Factors to be considered with
regard to the interests of justice include the reason for the

delay, and the extent of the prejudice, if any, that was suffered
by the other party.
The
application for leave to appeal to this Court was filed slightly
over three weeks late. The applicant had, however, within
the time
period provided for in the Rules of this Court, informed the State
Attorney
17
of her intention to launch the application. The state was thus not
left to assume that when the dies expired it could conduct
its
affairs on the basis that the applicant had no intention to
challenge the decision of the Supreme Court of Appeal.
The
reasons proffered for the delay are that: (i) the applicant was
waiting for an opinion from counsel on whether there were
prospects
of success; and (ii) the delays in relation to settling the papers
for her application for leave to appeal were caused
by problems
experienced by her legal representatives but not by any fault on
her part. This explanation is, in my view, reasonable.
The
Minister suffered no prejudice as the state had been informed,
within the prescribed time period, of the intention to launch
the
application for leave to appeal. In addition, the delay was not
overly long and the Minister does not oppose the granting
of
condonation. It is in the interests of justice to grant condonation
for the late filing of the application for leave to
appeal. I deal
next with the late filing of the Minister’s submissions.
Condonation: submissions
The
Minister filed submissions, apparently prepared by junior counsel,
on time. More detailed submissions prepared by both senior
counsel
and her junior were filed three days before the date of the
hearing.
18
Affidavits filed in support of the application for condonation were
deposed to by people who have personal knowledge of only
some of
the issues surrounding the delay sought to be condoned.
19
Hearsay evidence is thus relied on in an attempt to explain why the
Minister’s submissions were filed late. At least
one of the
two counsel should have explained the delay. The manner in which
this matter was handled by the legal representatives
of the
Minister is unacceptable.
What
ameliorates the failure to observe practice and the rules is that
the late submissions do not really differ substantially
from the
shorter submissions. They merely elaborate on what had already been
raised. For this reason, nothing raised therein
could be said to
have taken any of the other parties by surprise, and to have
prejudiced them.
It
is trite that the interests of justice require that all issues
pertaining to a matter be ventilated fully and for all parties
to
be given the opportunity to state their case as comprehensively as
possible. Additionally, none of the parties opposed this

application for condonation. Accordingly, I would grant condonation
for the late filing of the Minister’s submissions.
I would do
so mindful of the explanation given for the delay and the
unacceptable conduct of the Minister’s legal representatives

in this regard.
Application
for leave to appeal
The
requirements for granting leave to appeal to this Court are that
the application must raise a constitutional issue and that
it must
be in the interests of justice to grant leave. Factors to be
considered in determining whether it would be in the interests
of
justice to grant leave to appeal include the public interest in the
matter, the importance of the constitutional issue raised
and the
prospects of success.
The
right of a citizen to be protected by the state, and the claim for
damages based on the state’s alleged antecedent
liability for
the delictual conduct of its employees, implicate sections 7(2),
12(1), 28 and 205 of the Constitution. The Constitution
also
enjoins courts to develop the common law, including the delictual
principle of vicarious liability, in accordance with
“the
spirit, purport and objects of the Bill of Rights.”
20
This matter therefore raises constitutional issues of importance.
The
abuse of women and girl-children is rife in this country. The
police service is constitutionally required to combat these,
and
other, crimes.
21
This was aptly articulated in
Carmichele
:
“‘
Sexual
violence and the threat of sexual violence goes to the core of
women’s subordination in society. It is the single
greatest
threat to the self-determination of South African women.’ . .
. South Africa also has a duty under international
law to prohibit
all gender-based discrimination that has the effect or purpose of
impairing the enjoyment by women of fundamental
rights and freedoms
and to take reasonable and appropriate measures to prevent the
violation of those rights. The police is one
of the primary agencies
of the State responsible for the protection of the public in general
and women and children in particular
against the invasion of their
fundamental rights by perpetrators of violent crime.”
22
(Footnote omitted.)
This is a
matter of great public interest. And it is in the interests of
justice to explore the bounds of the test for vicarious
liability
laid down in
K
. This exercise should be undertaken to
determine the state’s liability in circumstances where a
police official on standby
duty deviates from his or her employer’s
constitutional obligation to protect the public and engages in
conduct that constitutes
“the single greatest threat to the
self-determination of South African women”,
23
namely rape.
In
the light of the substantially different approaches of the majority
and minority decisions in the Supreme Court of Appeal,
24
it is necessary for this Court to address these issues. In
addition, the applicant has reasonable prospects of success.
For
these reasons leave to appeal stands to be granted. By way of
background, it is necessary to highlight the general principles
of
vicarious liability and how they evolved until
K
was
decided. I do so below.
Vicarious liability in general
Vicarious
liability means a person may be held liable for the wrongful act or
omission of another even though the former did
not, strictly
speaking, engage in any wrongful conduct. This would arise where
there is a particular relationship between those
persons, such as
employment.
25
As a general rule, an employer is vicariously liable for the
wrongful acts or omissions of an employee committed within the

course and scope of employment, or whilst the employee was engaged
in any activity reasonably incidental to it.
26
Two
tests apply to the determination of vicarious liability. One
applies when an employee commits the delict while going about
the
employer’s business. This is generally regarded as the
‘standard test’. The other test finds application
where
wrongdoing takes place outside the course and scope of employment.
These are known as ‘deviation cases’.
The matter before
us is a typical deviation case.
Feldman
(Pty) Ltd v Mall
27
is a pivotal common law authority on deviation cases. In that case
an employee drove his employer’s vehicle to deliver
parcels
as instructed by his employer. Thereafter, he attended to his
personal matters. He then consumed alcohol, which significantly

impaired his capacity to drive. On his way back to his employer’s
premises, he negligently collided with, and killed,
a man who had
two minor dependants. By a majority, the Appellate Division held
the employer vicariously liable for the minor
children’s
claim for damages.
This
is the classic pre-constitutional common law position on vicarious
liability in deviation cases, like
K
and this one. The
breath of fresh constitutional air that courts are enjoined by
section 39(2) of the Constitution to infuse
into our common law
requires that the parameters of vicarious liability in deviation
cases be developed to accord with the
dictates of the Bill of
Rights. As appears later in this judgment,
28
this was done in
K
.
Watermeyer
CJ explained the rationale behind holding the employer liable even
if the employee has intentionally deviated from
his or her duty as
follows:
“
I
have gone into this question more fully than seems necessary, in the
hope that the reasons which have been advanced for the
imposition of
vicarious liability upon a master may give some indication of the
limits of a master’s legal responsibility,
and the reasons are
to some extent helpful. It appears from them that 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 and that the mere giving by him of directions or orders to his
servant is not a sufficient performance
of that duty. It follows
that if the servant’s acts in doing his master’s work or
his activities incidental to or
connected with it are carried out in
a negligent or improper manner so as to cause harm to a third party
the master is responsible
for that harm.”
29
Central
to this passage is the proposition that employees are extensions of
their employers. This is indeed so because, figuratively,
employees
are the hands through which employers do their work. Employers
could therefore be held to have created a risk of
harm to others
should their employees prove to be inefficient or untrustworthy.
That potential risk imposes an obligation on
employers to ensure
that the employees they hold out as the hands through which they
would serve or do business with others,
would not do the opposite
of what they are instructed and obliged to do. Should they,
however, act inconsistently with the
employers’ core
business, some link between the employers’ business and the
delictual conduct must be established
before the employers may be
held vicariously liable.
A
positive development of common law vicarious liability in deviation
cases that accords with the preceding observations occurred
in
Minister of Police v Rabie.
30
This was a claim for damages arising from the wrongful arrest,
detention and assault of the plaintiff. The arrest was effected
by
a mechanic employed by the police service, in pursuit of his
personal interests. At the time of the arrest, he was not wearing

police uniform and he was off duty. He identified himself as a
policeman to the victim, took the victim to the police station,

filled out a docket, wrongfully charged him with attempted
housebreaking and locked him up.
That
case is an example of an employee’s radical deviation from
the tasks incidental to his or her employment. The issue
was
whether the Minister of Police was vicariously liable for damages
arising from the delictual conduct of the off-duty policeman.
The
test for determining vicarious liability was formulated in these
terms:
“
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 by 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.”
31
(Citation omitted.)
What
flows from this test and the test in
K
, is that even if the
nature of the conduct giving rise to the delictual claim suggests
that the employer did not or could not
have authorised that
conduct, and even if the deviation is great in respect of space and
time, that would not necessarily exempt
the employer from
liability. The employer could still be held vicariously liable if a
connection exists between the conduct
complained of and the
business of the employer. That link must, however, be a real and
sufficiently close one. The test was
met in
Rabie
and the
state was held vicariously liable.
32
The
Rabie
formulation of the test provided the basis for the
test laid down by this Court in
K
as follows:
“
The
approach 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 a purely
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.”
33
(Footnote omitted.)
As
the Court stated in
K
, the objective portion of the
two-stage test requires a court to ask whether there is a
sufficiently close connection between
the wrongful conduct and the
wrongdoer’s employment.
34
This requires “explicit recognition of the normative content”
of this stage of the test.
35
The pivotal enquiry is therefore whether “there was a close
connection between the wrongful conduct of the policemen
and the
nature of their employment.”
36
That is the question that must be asked in determining the state’s
vicarious liability in this matter.
The application of the
K
test
Mr
van Wyk did not rape Ms F in the furtherance of the constitutional
mandate of his employer. He was not, and could not have
been,
ordered by his employer to do so. He acted in pursuit of his own
selfish interests. Accordingly, the first leg of the
K
test,
which is subjective, does not establish state liability here. What
remains to be considered is whether the requirements
of the second
leg of the test are met.
As
O’Regan J stated in
K
, the second question “does
not raise purely factual questions, but mixed questions of fact and
law.”
37
Accordingly, several interrelated factors have an important role to
play in addressing the question whether the Minister is
vicariously
liable for the delictual conduct of Mr van Wyk. The
normative components that point to liability must
here, as
K
indicated, be expressly stated. They are: the state’s
constitutional obligations to protect the public; the trust that

the public is entitled to place in the police; the significance, if
any, of the policeman having been off duty and on standby
duty; the
role of the simultaneous act of the policeman’s commission of
rape and omission to protect the victim; and
the existence or
otherwise of an intimate link between the policeman’s conduct
and his employment. All these elements
complement one another in
determining the state’s vicarious liability in this matter. I
deal with them in the same order
below.
The state’s constitutional obligations
The
state has a general duty to protect members of the public from
violations of their constitutional rights. In grappling with
the
question of the state’s vicarious liability, the
constitutional obligations to prevent crime and to protect members

of the public, particularly the vulnerable, must enjoy some
prominence. These obligations, as well as the constitutional rights

of Ms F, are the prism through which this enquiry should be
conducted.
Ms F
has a constitutional right to freedom and security of the person,
provided for in section 12(1) of the Constitution.
38
She also has the constitutional right to have her inherent dignity
respected and protected.
39
This, and the right to freedom and security of the person, are
implicated by the assault and rape which were perpetrated against

her person.
Many
men of our society, not unlike the policeman who raped Ms F,
continue to force themselves on women and on girl-children.
Often,
with impunity, men forcibly violate women’s bodies, privacy,
dignity and self-worth, freedom, and the right to
be treated with
equal regard. In short, rape of women and children violates a
cluster of interlinked fundamental rights treasured
by our
Constitution.
The
threat of sexual violence to women is indeed as pernicious as
sexual violence itself. It is said to go to the very core
of the
subordination of women in society.
40
It entrenches patriarchy as it imperils the freedom and self
determination of women. It is deeply sad and unacceptable that
few
of our women or girls dare to venture into public spaces alone,
especially when it is dark and deserted. If official crime

statistics are anything to go by, incidents of sexual violence
against women occur with alarming regularity.
41
This is so despite the fact that our Constitution, national
legislation, formations of civil society and communities across
our
country have all set their faces firmly against this horrendous
invasion and indignity imposed on our women and girl-children.
It
follows without more that the state, through its foremost agency
against crime, the police service, bears the primary responsibility

to protect women and children against this prevalent plague of
violent crimes. Courts, too, are bound by the Bill of Rights.
When
they perform their functions, it is their duty to ensure that the
fundamental rights of women and girl-children in particular
are not
made hollow by actual or threatened sexual violence. They must
acknowledge the policy-drenched nature of the common
law rules of
vicarious liability, that it is the courts that have in the past
fashioned and favoured them, and that now the
rules must be applied
through the prism of constitutional norms.
These
are rights the state is under a constitutional obligation to
respect, protect, promote and fulfil.
42
As stated,
43
a vital mechanism through which this is to be done is the police
service. The Constitution provides for its establishment in
section
205(1) and (2):
“
(1)
The national police service must be structured to function in the
national, provincial and, where appropriate, local spheres
of
government.
(2) National legislation must
establish the powers and functions of the police service and must
enable the police service to discharge
its responsibilities
effectively, taking into account the requirements of the provinces.”
The
objects of the police service are stated in section 205(3) as—
“
to
prevent, combat and investigate crime, to maintain public order, to
protect and secure the inhabitants of the Republic and
their
property, and to uphold and enforce the law.”
In
compliance with this constitutional injunction, the police service
was established and clothed with the power and authority
to be the
hand through which the state would discharge these duties. This was
done in terms of the national legislation contemplated
by the
Constitution.
44
The assurance of protection and crime prevention given to the South
African public by the supreme law, and the consequential

establishment of the police service, understandably raised hopes
and some expectation that dependable help is available.
These
constitutional duties resting upon the state, and more specifically
the police, are significant in that they suggest a
normative basis
for holding the state liable for the wrongful conduct of even a
policeman on standby duty, provided a sufficiently
close connection
can be determined between his misdeed and his employment. This
leads to the discussion of the trust that people
are entitled to
repose in the police.
Trust
A
further factor connecting the wrongful act at issue here with the
policeman’s employment is trust. This factor operates
both
normatively, in laying the basis for holding the state liable for
the misdeed of even an off-duty policeman, provided
there is a
sufficient connection with his employment, and factually, in that
it creates the connection between the employment
and the wrongful
conduct.
The
police service relies on its individual members to execute its
constitutional mandate to the public. This mandate—
“
should
quite legitimately and reasonably result in the trust of the police
by members of the community. Where such trust is established,
the
achievement of the tasks of the police will be facilitated. In
determining whether the Minister is liable in these circumstances,

courts must 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.”
45
Accordingly,
the employment of someone as a police official may rightly be
equated to an invitation extended by the police service
to the
public to repose their trust in that employee. When a policeman
abuses the trust placed in him by a vulnerable woman
or girl-child,
by raping her, a link may well be established between the
employee’s employment and the delict flowing
from the rape.
This was articulated as follows in
K
:
“
In
sum, the opportunity to commit the crime would not have arisen but
for the trust the applicant 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.”
46
Counsel
for the sec
o
nd amicus curia
e
submitted, correctly in my view, that for the purpose of vicarious
liability, the focus on trust avoids the ‘on-duty-off-duty’

debate that was central to the Supreme Court of Appeal judgments.
Once we accept that our Constitution assures the public that
it is
safe to repose their trust in the police, we must also
accept that that constitutional aspiration is undermined when that
trust
is breached.
Whenever
a vulnerable woman or girl-child places her trust in a policeman on
standby duty, and that policeman abuses that trust
by raping her,
he would be personally liable for damages arising from the rape.
47
Additionally, if his employment as a policeman secured the trust
the vulnerable person placed in him, and if his employment

facilitated the abuse of that trust, the state might be held
vicariously liable for the delict. The victim’s understanding

of the situation would presumably be that she is being protected or
assisted by a law enforcement agent, empowered and obliged
by the
law to do so. Whether he is on or off duty would, in all
likelihood, be immaterial to her. From where she stands, he
is a
policeman, employed to protect her, and should therefore be trusted
to uphold, and not to contravene, the law.
I
accept that the distinction between a policeman who is on duty and
one who is off duty is a relevant factor in determining
the
closeness of the connection between the wrongful act and the
perpetrator’s employment. I do not accept, however,
that it
is determinative of whether the state may be held liable. Could we
say that because a policeman is not on duty, he
has no obligation
as a policeman to protect a child against rape? I do not think so.
The on-duty-off-duty discussion in this
case is rendered less
significant by the fact that a vulnerable young girl was led to
believe that a policeman, whether on
or off duty, assumed the
responsibility to protect her or secure her safety. This was
sufficient to cause her to let her guard
down and place herself in
his ‘capable hands’. Generally, that would weigh in
favour of rendering the state vicariously
liable in the event of
that trust being betrayed.
In
addressing the question of Mr van Wyk’s personal liability
and his employer’s vicarious liability, it should
make little
difference that he was on standby duty, for which he was being
paid. What matters is whether the trust placed in
him as a
policeman by a vulnerable member of the public, creates a
sufficiently close connection between his delictual conduct
and his
employment. This I address later in this judgment.
The interplay between the commission and the omission
The
Supreme Court of Appeal dealt with the significance of the
simultaneous commission and omission in the determination of
the
employer’s vicarious liability. It is therefore necessary
that this matter be addressed. The majority held that vicarious

liability cannot be imposed on the state for the rape committed by
its employee. It can only be held vicariously liable for
the
omission of a policeman who was on duty and therefore under an
obligation to protect the victim who was harmed in his presence.
The
role of a police official’s commission of a delictual act and
the failure to prevent it were addressed in
K
. After dealing
with the policemen and their employer’s general duty to
protect the public, the policemen’s offer
to assist the rape
victim and the trust that moved the victim to accept the offer, the
following was added as the third ground
for holding the state
liable:
“
Thirdly,
the conduct of the policemen which caused harm constituted a
simultaneous commission and omission. The commission lay
in their
brutal rape of the applicant. 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. In my view, these three inter-related
factors
make it plain that viewed against the backdrop 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.”
48
It
follows from the judgment, read as a whole, and from this passage in
particular, that this Court in
K
did not impose vicarious
liability on the state only for the omission of its employees. Both
the commission and the omission had
an equally important role to
play in finding the state liable for what had happened to the rape
victim.
In
K
, the roles of the commission and omission were addressed
in relation to the constitutional obligations of the employer. The

commission is relevant to the determination of liability by reason
of its intimate connection to the employment of the employee.
More
importantly, the employment provided the means to commit the
crime.
49
The omission is relevant to the extent that the police officials
failed to protect the victim from harm.
In
the context of vicarious liability, when a policeman rapes a woman
instead of protecting her, his failure to protect the
victim who
has placed her trust in him is inseparable from the act of
commission. They are two sides of the same coin and both
stem from
and revolve around the same incident. In this case they are both
about the employer and the employee’s constitutional

obligations to safeguard the well-being of members of the public.
I do
not understand the state’s liability in
K
to have been
based solely on the policemen’s omission to the exclusion of
their commission. I am therefore in respectful
disagreement with
the majority in the Supreme Court of Appeal with regard to the
distinction they drew between the role of
the commission and the
omission and the significance they attach to the fact of being on
or off duty.
Sufficiently close connection
The
Minister’s vicarious liability will arise only if a
sufficiently close connection exists between the policeman’s

delictual conduct and his employment. The relevant part of the
K
test raises a question which is central to the determination of
vicarious liability in cases of this kind, and—
“
[t]hat
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.”
50
This
question must be answered by weighing the normative factors that
justify the imposition of liability on the policeman’s

employer against those pointing the other way.
Unlike
before, when the test in deviation cases was whether the employee
acted within the course and scope of employment, the
focus now is
whether—
“
the
connection between the conduct of the policemen and their employment
was sufficiently close to render the respondent liable.”
51
The
establishment of this connection must be assessed by explicit
recognition of the normative factors that point to vicarious

liability including the constitutional mandate of the state, to
establish a credible and efficient police service on which the

public ought to be able to rely for protection from, and prevention
of, crime. That should be a police service worthy of the
trust of
the public and one to which vulnerable members of the public ought
to turn readily for protection in times of need.
This
position was articulated in
K
as follows:
“
When
the policemen — on duty and in uniform — raped the
applicant, they were simultaneously failing to perform their
duties
to protect the applicant. In committing the crime, the policemen not
only did not protect the applicant, they infringed
her rights to
dignity and security of the person. In so doing, their employer’s
obligation (and theirs) to prevent crime
was not met. There is an
intimate connection between the delict committed by the policemen
and the purposes of their employer.
This close connection renders
the respondent liable vicariously to the applicant for the wrongful
conduct of the policemen.”
52
In
keeping with an apparent appreciation of the police service’s
obligation to protect her, Ms F looked to Mr van Wyk

for protection. She did so as a result of his employment as a
policeman, which placed him in a position of trust. It is this

trust that is necessary for the fulfilment of the police service’s
constitutional mandate. Sadly, he betrayed the trust
she reposed in
him, by raping her. She was very young, stranded in the middle of
nowhere at night, and very vulnerable when
Mr van Wyk
abused her trust by taking advantage of her helplessness.
There
are factual differences between this case and
K.
There the
policemen were on duty and in uniform, driving a marked police
vehicle. Ms K placed her trust in them for those clear
reasons,
which created the link between the policemen’s employment and
their subsequent misdeed. The factors here are
admittedly more
tenuous.
It
is so that Mr van Wyk was not in uniform, that his police car was
unmarked and he was not on duty but on standby. But his
use of a
police car facilitated the rape. That he was on standby is not an
irrelevant consideration. His duty to protect the
public while on
standby was incipient. But it must be seen as cumulative to the
rest of the factors that point to the necessary
connection. He
could be summoned at any time to exercise his powers as a police
official to protect a member of the public.
What is more, in that
time and space he had the power to place himself on duty. I am
therefore satisfied that a sufficiently
close link existed to
impose vicarious liability on Mr van Wyk’s employer.
In
conclusion: The police vehicle, which was issued to him precisely
because he was on standby duty, enabled Mr van Wyk to commit
the
rape. It enhanced his mobility and enabled him to give a lift to Ms
F. Further, when Ms F re-entered the vehicle, she understood

Mr van Wyk to be a policeman. She made this deduction
from the dockets and the police radio in the vehicle. In other

words, he was identifiable as a policeman. And, in fact, he was a
policeman. Pivotal is the normative component of the connection

test. Beyond her subjective trust in Mr van Wyk is the fact that
any member of the public and in particular one who requires

assistance from the police, is entitled to turn to and to repose
trust in a police official.
For
these reasons the Minister is vicariously liable.
Direct liability
None
of the parties raised the issue of the state’s direct
liability. I therefore do not deal with it.
Absolute liability
The
Minister contended that the application of the
K
test to
police officials on standby duty might give rise to absolute
liability. I do not think so. The sufficiently close connection

requirement is adequate to prevent this.
Costs
The
applicant is successful and therefore entitled to an order for
costs.
Order
In
the result, the following order is made:
Condonation
is granted.
Leave
to appeal is granted.
The
appeal is allowed and the order of the Supreme Court of Appeal is
set aside.
The
Minister of Safety and Security is liable for damages suffered by
the applicant as a result of the conduct of Mr van Wyk
on 15
October 1998.
The
Minister of Safety and Security is ordered to pay costs of the
applicant in this Court, the Supreme Court of Appeal and
the High
Court.
FRONEMAN J:
In
K
v Minister of Safety and Security
this Court extended the
traditional requirements of vicarious liability to include
situations where—
“
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.”
53
K
was a case involving the rape of a woman by policemen. This case
also involves a rape by a policeman. It is no part of the work
of
policemen to rape women, but it is part of their duty to protect
women from being raped. At issue here is whether the state
should be
held responsible, in the particular circumstances of this case, for
the conduct of the policeman (Mr van Wyk) who raped
the applicant.
The
main judgment holds the state liable on the basis of vicarious
liability, as in
K
. There can be little doubt that
K
was written in the language of vicarious liability. I also accept
that if vicarious liability is the only way in which the
normative
‘close connection’ test in
K
may be applied,
then I am bound by its exposition and application in the main
judgment. To that extent I thus concur in its
reasoning and
outcome. In my respectful view, however, the normative
considerations expounded in
K
are also capable of supporting
a similar outcome based not on vicarious liability, but on direct
liability.
It
should be recognised that the bold, important and necessary steps
taken in
K
are unduly constrained by the language of
vicarious liability.
54
We should recognise that state delictual liability in circumstances
where the state has a general constitutional and statutory
duty to
protect people from crime is usually ‘direct’, and not
‘vicarious’ in the sense traditionally
understood by
that term. This is because the state invariably acts through the
instrument of its organs – state officials
performing public
duties. The difficult normative issue of when the state is liable
in delict for their conduct should in my
view no longer be dealt
with as an aspect of vicarious liability but rather as part of the
normal direct enquiry into whether
the elements of our law of
delict are present when instruments of the state act. To do so
would still be true to the substance
of
K
. Of particular
relevance, in relation to the “sufficiently close link”
issue referred to in
K
, will be the enquiry into
wrongfulness.
There
are a number of reasons why it is necessary to move beyond the
vicarious liability of the state as in
K
. It is necessary,
first, to explain why, in
K
, the language of vicarious
liability was used. The second reason is to acknowledge that the
language of vicarious liability
does give rise to some difficulty
in cases where the state’s constitutional and statutory
obligations to protect people
are implicated. The third is that the
state invariably acts through its organs and employees, never
distinctly or independently
of them. The fourth is to examine
whether the wrongfulness requirement in our law of delict provides
a more appropriate vehicle
for the limitation of state liability,
rather than the “sufficiently close link” test of
vicarious liability, especially
in cases of intentional deviation
from state obligations. The last will be to see what role the
ultimate determination of negligence
of the state in fixing the
further contours of its delictual liability may play, in addition
to wrongfulness.
The main judgment does not deal with direct liability, on the
ground that it was not argued before us. However, I consider
the
pleadings and evidence presented in this matter to lay an
appropriate basis for consideration of the direct liability of
the
state. The possible prejudice that may have been caused by
considering direct liability as the proper basis for deciding
the
case would have been adequately met by calling for further argument
and, if that was the appropriate course, to refer the
matter back
to the High Court. That has not happened and, accordingly, I
proceed without the benefit of further argument on
the issue.
55
The result I arrive at is, I believe, an application of the
substantive normative considerations pioneered in
K
.
The
traditional language of vicarious liability
The
conventional understanding of vicarious liability is described in
the following terms by Nugent JA in the majority judgment
in this
matter in the Supreme Court of Appeal:
“
Vicarious
liability has a long but uncertain pedigree. 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. 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.”
56
(Footnotes omitted.)
This
traditional formulation may imply that there is no normative link
between the conduct of the innocent employer (“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”) and the
culpable conduct
of the employee (“a delict that is committed by another”),
only a factual relationship (“by
virtue of the relationship
that exists between them”). But that is not correct. There
must be some normative connection
or link between the delict and
that relationship.
57
The traditional link imposed by law was that the delict had to be
performed by employees in the course and scope of their employment

with the employer. The true justification for imposing this link is
what makes the pedigree of vicarious liability “uncertain”.

But the acknowledgment that it needs justification shows that its
imposition is ultimately a normative issue.
The
shorthand ‘course and scope’ rule link, however, gave
rise to two misleading assertions about vicarious liability.
The
first was that determining whether an employee’s conduct fell
within the course and scope of his employment was merely
a question
of fact, and the second was that the application of the course and
scope rule thus invariably had to be treated
as separate from the
reasons or justification for the rule. The effect of these was to
hide the deeply normative nature of
the legal enquiry into the link
between employee’s conduct and the employment relationship in
order to establish liability
on the part of the employer.
The
judgment in
K
exposed both these fallacies:
“
The
rationale for vicarious liability is to be found in a range of
underlying principles. . . .
Despite the policy-laden
character of vicarious liability, our Courts have often asserted,
though not without exception, that
the common-law principles of
vicarious liability are not to be confused with the reasons for
them, and that their application
remains a matter of fact. . . .
Such an approach appears to be seeking to sterilise the common-law
test for vicarious liability
and purge it of any normative or social
or economic considerations. . . .
Denying that the principles
bear such normative implications will only bedevil the exercise by
rendering inarticulate premises
that in a democracy committed to
openness, responsiveness and accountability should be articulated.”
58
(Footnotes omitted.)
It
was thus necessary to expose the normative character of vicarious
liability before the state’s delictual liability,
in the
light of the Constitution, could be developed further. The
development in
K
was done upon an acceptance, for the
purposes of the discussion in that judgment, that it was not a
wrongfulness issue,
59
but one relating to the ‘sufficiently close connection’
enquiry of vicarious liability.
60
It
is understandable why the language of vicarious liability was used
in
K
, because this was traditionally the sole basis upon
which state delictual liability had been approached in our law
until then.
61
The delictual liability of the state is informed by the
constitutional framework within which it operates. Prior to 1888

the position under the colonial framework was that of ‘the
king can do no wrong’.
62
That changed when “Crown Liabilities” legislation was
introduced in the various colonies, starting in 1888.
63
On formation of the Union of South Africa the colonial legislation
was replaced by the Crown Liabilities Act,
64
and then by the State Liability Act,
65
which still applies today. Within that pre-constitutional statutory
framework the courts developed the delictual liability
of the state
from the total exclusion of liability when a public servant acted
in the fulfilment of a statutory or common law
duty,
66
through exclusion only when the state official had a discretion to
perform the duty and was thus not under the control of the
state,
67
to later decisions where the control test merely became one of the
factors to be considered in determining liability.
68
The
development of the law of state delictual liability is thus nothing
new. The decision in
K
brought state delictual liability
within the ethos of our new constitutional framework, but still
within the traditional framework
of vicarious liability.
Is
the language of vicarious state liability still necessary? I think
not. Even before the advent of the Constitution cogent
doubt was
expressed about whether vicarious liability was appropriate:
“
The
model of vicarious liability is completely inadequate to provide for
public compensation when damage is caused by officials
acting
unlawfully and culpably because when exercising their powers
officials are not acting on behalf of their employers (the

executive) at all; at best (if we are to personify institutions)
they act on behalf of the legislature. In short, an
employer/employee
situation
does
not exist
and, when exercising statutory powers, those officials
are
the state or public authority itself
”.
69
(Footnote omitted.)
The
difficulties of vicarious liability
In
K
, O’Regan J considered three factors to be important
in her conclusion that the state was vicariously liable in delict.
They were that both the state and the policemen had a general
statutory and constitutional duty to prevent crime and protect

members of the public; that on the facts of the case the policemen
had a specific duty to assist the applicant; and that the
conduct
of the policemen which caused harm constituted a simultaneous
commission and omission, the omission being their failure
to
protect her from harm.
70
The
majority in the Supreme Court of Appeal
71
understood the implications of that approach to be this:
“
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—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).”
72
(Footnotes omitted.)
And
further:
“
In
view of [the] 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.”
73
If
one accepts the correctness of the traditional assumption of a
clear distinction between vicarious and personal, or direct,

liability, it is difficult to fault this logic.
There
is another difficulty in delineating direct and vicarious liability
where the existence of public duties and their breach
are at stake.
It is the notion of a secondary breach of a legal duty by the
employer to establish vicarious liability.
74
The
existence of a legal duty not to cause harm negligently to another
and its breach are important aspects of the enquiry into
the
wrongfulness of the conduct of the state official for whose conduct
the state is sought to be held liable. It is a question
that does
not fit comfortably into the second, objective, leg of the
vicarious liability test, namely whether there is a sufficiently

close link between the employee’s acts for his own interests
and the purposes and business of the employer.
75
Conceptually, the answer to the duty question should already have
been dealt with in the primary enquiry to determine whether
the
employee’s own conduct was wrongful, a determination upon
which the secondary, vicarious, liability of the employer,

traditionally understood, depends on.
The
explanation for the apparent overlap between direct and vicarious
liability is, however, not only that it has suddenly been
brought
upon us by the decision in
K
, but rather that the
distinction between direct and vicarious liability has never been
as clear as traditionalists want us
to believe.
In
Vicarious Liability in the Law of Torts
,
76
Professor Atiyah remarks that the idea that a person is liable only
for—
“
acts
or omissions—for things which he has actually done or omitted
to do—is in many ways a dangerous and misleading
half-truth.
It would be more accurate to say that a person is generally liable
for an event or an occurrence causing loss to
the plaintiff, for
which the defendant bears some measure of responsibility.”
77
There
are many situations in the law where that responsibility arises
from the fact that defendants have played some role in
creating the
risk that caused the loss, or because they have in some way
associated themselves with the risk by “authorising,

assisting or procuring its commission, or by ratifying it after it
is done.”
78
Liability for omissions also makes the line between personal and
vicarious liability less clear, because those responsible
for the
omission are difficult to identify, or there may be several people
responsible. Atiyah points out that “[t]his
is particularly
relevant in dealing with the liability of groups of persons
associated together in corporations, public authorities
and such
like.”
79
Given
this inherent tendency for overlap and potential conceptual
difficulty, is there a different way forward for the delictual

liability of the state, other than vicarious liability?
Direct
liability
The
state is, in our law, a legal person.
80
It can only act through the instrumentality of its organs and
officials forming part of those organs.
81
Organs of state may only perform those functions that they are
empowered to do by the Constitution and by legislation in

conformity with it.
82
The police service is an organ of the state and its members are
subject to the specific constitutional and statutory duties
that
apply to the police. The acts of state organs are at the same time
acts for which the state is liable, because they are
the state’s
own acts.
83
In
Mhlongo
84
Corbett JA dismissed direct delictual liability on the part of the
state on the basis that although it was “an interesting

theory”, the view that all members of the police force are
prima facie
servants of the state was “too well
entrenched in decisions of this Court” to justify discarding
vicarious responsibility
as the basis for state liability.
85
But
that was before the advent of the Constitution. In a candid
assessment of criticism directed at the application of vicarious

liability in
K
,
86
the majority in the Supreme Court of Appeal re-appraised the state
of affairs:
“
I
think that [the] 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 . . . 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.”
87
(Footnotes omitted.)
The
question arises whether it is appropriate to develop
K
further by acknowledging that direct, rather than vicarious, state
delictual liability is called for in this matter. In my
view it is.
The decision in
K
was ground-breaking in many respects. It
lifted the veil behind which vicarious liability in its traditional
formulation sought
to hide substantive social and policy choices in
adjudication. It clarified the importance of constitutional values
in those
choices. In doing so it enriched our law. Further
development will only deepen and enhance our understanding of the
inevitability
of evaluative choices when we apply and develop the
rules of our common law. We are fortunate that we have, in our law
of delict,
a vehicle for that development – the requirement
of wrongfulness.
88
Wrongfulness or “sufficiently close connection”?
Both the wrongfulness requirement in direct delictual liability and
the requirement of “a sufficiently close connection”
in
a vicarious liability enquiry involve mixed questions of fact and
law. Does it then really make any difference whether a
court makes
the value assessment in respect of wrongfulness or as part of the
second, objective, “close connection”
question? I think
it does.
As
we have seen, there are general difficulties in delineating direct
and vicarious liability.
89
It is the conceptual difficulty of introducing the notion of a
legal duty and its secondary breach by the entity sought to
be held
vicariously liable, that merits further discussion here.
In
the case of a policeman – a state employee – the
existence of a public duty which was breached by that policeman

would make the state directly liable for the reasons already
discussed.
90
If the breach was not of a public duty, but a purely private one
unconnected to his or the state’s public obligations,
the
traditional understanding of vicarious liability, based on the
short-hand ‘course and scope’ rule, may result
in the
state being secondarily liable without 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.”
91
But how could the breach of public duties by
other
state
organs constitute
vicarious
liability in that situation? If
there was a breach of public duties by them it would amount, again,
to direct liability of
the state.
Given
these difficulties, the creation of risk, vulnerability of young
people and women, public trust in the police and the
accountability
of the state appear to me to be somewhat at odds in determining the
secondary, vicarious state liability where
they are insufficient to
establish a public duty on the primary wrongdoer. These are factors
that may, however, legitimately
be assessed in determining the
primary wrongfulness of the conduct of the state, through its
officials, in a delictual action
based on direct liability.
Wrongfulness
in delict
The
development of wrongfulness as a criterion for determining the
boundaries of delictual liability found its primary input
in
Minister van Polisie v Ewels
.
92
In that case the then Appellate Division found that our law had
reached the stage of development where an omission is regarded
as
unlawful conduct when the circumstances of the case are of a nature
that the legal convictions of the community demand that
the
omission should be considered wrongful.
93
This open-ended general principle has since evolved into the
general criterion for establishing wrongfulness in all cases,
not
only in omission cases.
94
Wrongfulness
is established where there is a breach of a legal duty not to cause
harm to another by one’s negligent conduct.
95
If the conduct consists of a positive act causing physical damage
to another’s person or property, both the existence
of the
duty not to cause harm and its breach are self-evident. The duty
arises because the positive act infringes upon the
recognised
interests of property and security of the person. It is for that
reason that the law recognises these invasions
as
prima facie
wrongful.
96
In these cases public and legal policy issues surrounding
wrongfulness are already settled and wrongfulness can be avoided

only by pleading some form of justification for the breach of the
duty or, put differently, for the infringement of the recognised

right or interest.
Where
a court is requested to accept the existence of a legal duty in the
context of the wrongfulness enquiry in the absence
of legal
precedent “it is in reality asked to extend delictual
liability to a situation where none existed before.”
97
Examples of where a court has done this are liability for negligent
omissions and for negligently caused pure economic loss.
In these
kinds of cases the imposition of a duty is determined with
reference to considerations of public and legal policy,
consistent
with constitutional norms.
98
It is apparent from this that the general criterion of
“reasonableness” in the wrongfulness enquiry concerns

the reasonableness of imposing liability on the defendant and not
the reasonableness of the defendant’s conduct, which
is an
element of the separate negligence enquiry in our law of delict.
99
The
wrongfulness requirement in our law of delict is thus a normative
or policy-based enquiry to decide whether new rights and
duties
should be recognised and whether old ones should be extended,
restricted or abolished.
100
Wrongfulness
and constitutional values
Decisions
of this Court
101
and the Supreme Court of Appeal
102
have recognised that constitutional values must now inform this
evaluative assessment, in particular the value or norm of
accountability.
103
In
order not to conflate the wrongfulness and negligence requirements
of our law of delict, an assumption of negligently caused
harm
often assists in correctly focussing on what is relevant in
deciding the reasonableness of imposing liability under the

wrongfulness enquiry.
104
The assumption is necessary for the correct assessment of
wrongfulness as a separate requirement of delictual liability, and

obviously cannot be made when the further requirement of negligence
is independently assessed. The wrongfulness enquiry would
thus
determine whether it is reasonable to impose liability or to
withhold it for other public or legal policy reasons. It
is within
that context that the treatment of constitutional values as part of
the wrongfulness enquiry in our case law should
be assessed.
From
this perspective, reference to the constitutional norm of
accountability in the determination of wrongfulness does not

provide reasons independent of negligence to impose delictual
liability.
105
It simply provides the proper context within which to determine
whether the costs associated with the imposition of delictual

liability for negligently caused harm should prevent the imposition
of that liability or not.
106
Generally, accountability concerns would favour delictual
liability, but that is not always the case.
107
Factors
that militate against the imposition of liability include the
availability of an alternative remedy,
108
the possibility that imposing liability might undermine the
functioning of the state organ in question,
109
the convenience of administering a rule that liability will be
imposed in these circumstances,
110
the possibility of limitless liability
111
and whether the plaintiff is best placed to protect himself against
loss.
112
It is generally only when all these concerns are met that the value
of accountability and other constitutional values may require
the
recognition of a legal duty under the wrongfulness enquiry.
The
ultimate determination of negligence
Wrongfulness
is determined on the assumption of negligent state conduct on the
part of the official directly involved in the
breach of a public
duty. When one turns to the actual determination of negligence this
assumption obviously falls away. The
facts might show that there
was no negligent conduct on the part of this official.
113
It is also conceivable that evidence could be presented by the
state that it took reasonable steps, through the instrumentality
of
other
state officials, to prevent the wrongful and negligent
conduct of the state official directly involved, and that
accordingly
an ultimate finding of negligence is not warranted.
114
With
these general comments in mind it is now necessary to return to the
case before us in order to examine whether it should
be decided on
the basis of direct state delictual liability.
Issues
on the pleadings
At
the start of this judgment,
115
I indicated that the pleadings and evidence justified deciding the
case on the basis of direct liability, subject to further
argument
from the parties on the issue, which might have necessitated
referring the matter back to the High Court.
116
Because this route has not been taken, I will refer to the facts
and issues covered in the pleadings and evidence as briefly
as
possible.
The
case was pleaded in the conventional manner, namely that Mr van Wyk
acted within the course and scope of his employment
with the first
respondent (Minister) and that this made the Minister liable for
the damages sustained by the applicant. Although
this is the
conventional way of pleading vicarious liability, it is not
necessarily the legal conclusion in the pleadings which
determines
the real issues between the parties, but the facts upon which Ms F
relies. If these facts also ground an action
in direct liability
against the Minister, without the Minister being prejudiced by the
form of the pleadings
117
or any subsequent broadening of the issues during the course of the
trial,
118
then there is no substantive reason why the case should not be
determined on the basis of direct liability.
A
close examination of the applicant’s particulars of claim
shows sufficient averments that, if established, would ground

direct liability. In particular, in her combined summons Ms F
averred that Mr van Wyk was on duty or on standby duty. She averred

that he used a police vehicle in order to drive Ms F around and
eventually assault and rape her. Ms F’s reply to the

Minister’s request for trial particulars emphasised that Mr
van Wyk was under the command of a police captain, that he
used a
police vehicle to transport Ms F to the place where he raped her
and that the Minister allowed the use of the vehicle
without
complaint, as evidenced by the refuelling of the vehicle at state
expense.
The
applicant also alleged that the factual and legal grounds upon
which the Minister was liable included: that Mr van Wyk had
been
found guilty and sentenced on charges of assault with intent to do
grievous bodily harm, negligent discharge of a firearm,
the use of
a firearm whilst under the influence of liquor and assault; that
the applicant had requested a lift from Mr van
Wyk and that this
was a function and duty of members of the police; that the
applicant had witnessed police dossiers in the
vehicle used by Mr
van Wyk; and that the Constitution created a duty to prevent,
combat and investigate crime and to protect
the citizens of South
Africa.
The
salient facts upon which the matter must be decided are set out in
the majority judgment in the Supreme Court of Appeal
and in the
main judgment of this Court. It is not necessary to repeat them
here.
Wrongfulness
– a legal duty on Mr van Wyk and the Minister?
The
determination of wrongfulness involves questions of fact and law.
The applicant needs to prove the facts upon which she
relies for
giving rise to the existence of a legal duty towards her on the
part of Mr van Wyk and the Minister.
119
Whether those facts give rise to a legal duty is a question of law
that is determined with reference to considerations of public
and
legal policy, consistent with constitutional norms.
120
For
direct state liability to exist the legal duty must be a public
one. In this case that translates into a public duty that
must
primarily have rested on Mr van Wyk. I will return to this aspect
later. Before doing so, however, I need to state why
I do not
consider that either the particular or general ‘creation of
risk’ arguments advanced on behalf of the
applicant and the
amici assist in establishing any public duty on the state in this
matter.
The
particular form of the argument rested on the fact that Mr van Wyk
had previous convictions and the assertion that the Minister
had a
legal duty to remove him from the police service for the reason
that his continued service in the police created the
risk of the
kind of behaviour that he exhibited that night eventuating. It
seems to me that this “duty” takes the
matter no
further. If no primary public duty rested on Mr van Wyk, or any
other policeman in his position, not to rape the
applicant or to
prevent her rape, then that is the end of the enquiry. It would not
matter whether Mr van Wyk had been properly
vetted earlier, because
in the circumstances there would have been no duty on any
policeman, good or bad, to prevent Ms F’s
rape.
121
The
general argument is that the existence of an organisation like the
police service creates or increases the risk of rape
by policemen.
On balance I think we must accept that the existence of the police
service reduces the risk of crime, including
rape.
122
That
brings us back to the possible existence of a public duty resting
on Mr van Wyk. What would its nature and content be?
Mr
van Wyk’s conduct that night involved a simultaneous
commission and omission. The commission consisted of the positive

physical act of raping the applicant. The omission consisted of his
failure to protect her.
123
The former is a delict for which Mr van Wyk is personally liable to
the applicant, but not because of any duty flowing from
public
constitutional or statutory obligations. The wrongfulness consists
of the breach of the general duty of all to refrain
from infringing
the physical integrity and security of person of another. No direct
state liability can flow from that. The
latter possibility, of
omission, is more problematic.
It
is accepted in our law that there is a constitutional duty on the
police to prevent, combat and investigate crime and to
protect the
inhabitants of the Republic.
In
Van Eeden
this duty was stated in the following terms:
“
The
fundamental values enshrined in the Constitution include human
dignity, the achievement of equality and the advancement of

human rights and freedoms, non-racialism and non-sexism (section
1(a) and (b) of the Constitution). In terms of section 12(1)(c)

everyone has the right to freedom and security of the person, which
includes the right to be free from all forms of violence
from either
public or private sources. . . . Freedom from violence is recognised
as fundamental to the equal enjoyment of human
rights and
fundamental freedoms (
S
v Baloyi (Minister of Justice and Another Intervening)
[1999] ZACC 19
;
2000 (2) SA 425
(CC) at para 13). Section 12(1)(c) requires the
state to protect individuals, both by refraining from such invasions
itself and
by taking active steps to prevent violation of the right.
The subsection places a positive duty on the state to protect
everyone
from violent crime.”
124
In
K
, this Court expressed this general duty as follows:
“
Our
Constitution mandates members of the police to protect members of
the community and to prevent crime. It is an important mandate
which
should quite legitimately and reasonably result in the trust of the
police by members of the community. Where such trust
is established,
the achievement of the tasks of the police will be facilitated. In
determining whether the Minister is liable
in these circumstances,
courts must 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.”
125
This
Court has noted the duty on the state to take steps to prevent the
violation of the rights of women and children:
“
The
police is one of the primary agencies of the state responsible for
the protection of the public in general and women and children
in
particular against the invasion of their fundamental rights by
perpetrators of violent crime.”
126
These
factors, trust in the police and the special vulnerability of women
and children, are also present in this case. The applicant
was 13
years old at the time of the incident. And it was objectively
established that the fact that Mr van Wyk was a policeman
played a
role in her decision to accept assistance from him.
127
Mr
van Wyk was in the position to offer the applicant a lift that
night by virtue of his access to police resources, particularly
the
possession of a police vehicle. That occurred because of his status
as a detective and the fact that he was on standby
duty.
128
All
these factors are relevant in objectively assessing whether there
was a legal duty, arising from general and particular
state
obligations, to protect those who place their trust in the police
(especially vulnerable children and women). The fact
that Mr van
Wyk did not consider himself to be on duty, and that he
intentionally disregarded any possible obligation not to
cause harm
negligently to the applicant, makes matters worse, not better.
In
Gore
,
129
Cameron JA and Brand JA examined the relevance of state of mind in
the determination of wrongfulness:
“
We do
not think that it can be stated as a general rule that, in the
context of delictual liability, state of mind has nothing
to do with
wrongfulness. . . .
In the
language of the more recent formulations of the criterion for
wrongfulness: in cases of pure economic loss the question
will
always be whether considerations of public or legal policy dictate
that delictual liability should be extended to loss resulting
from
the conduct at issue. Thus understood, it is hard to think of any
reason why the fact, that the loss was caused by dishonest
(as
opposed to
bona fide
negligent) conduct, should be ignored in deciding
the question. We do not say that dishonest conduct will always be
wrongful for
the purposes of imposing liability, but it is difficult
to think of an example where it will not be so.
In our view,
speaking generally, the fact that a defendant’s conduct was
deliberate and dishonest strongly suggests that
liability for it
should follow in damages, even where a public tender is being
awarded.”
130
Similar
considerations apply here. I accept that there is no general
obligation on the police to protect citizens from crime
where they
are not on duty.
131
But the converse, that they never have that obligation when not on
duty, is not true either. While off-duty, they are entitled
to
arrest without a warrant.
132
They may place themselves on duty when the occasion warrants it.
133
When they are placed in possession of police resources by virtue of
their status as police officials when they are off-duty,
particular
circumstances might oblige them to assume their protective duties
towards the public. Those circumstances would
arise where,
objectively, vulnerable people place their trust in them because
they are police officials. And intentional disregard
of their
protective duty in these kinds of circumstances may be the last
straw for the courts to decide that it is reasonable
to impose
delictual liability.
This
is that kind of case. I consider that wrongfulness has been
established.
Negligence
Mr
van Wyk’s omission to protect the applicant was deliberate,
but also, obviously, negligent. There is no evidence that
the state
took other reasonable measures to prevent him from acting in the
way he did. Despite knowledge of his previous convictions
he was
allowed to continue service. Harm was foreseeable. No steps were
taken to prevent it from occurring. In view of the
fact that the
parties were not called on to make further submissions, however,
the possibility of further evidence on this
aspect may have changed
the situation.
134
Conclusion
For
these reasons I concur in the order of the main judgment.
YACOOB J (Jafta J concurring):
Introduction
This
case requires us to decide whether the circumstances in which the
applicant (Ms F) was assaulted and raped by an off-duty
detective
sergeant in the early hours one morning justify imposing vicarious
liability on the Minister.
135
Mogoeng J holds that the Minister is vicariously liable. I am of
the view that this conclusion is unwarranted. Hence this judgment.
I
agree with Mogoeng J’s judgment (main judgment) that the
applications for condonation by Ms F for the late filing of
the
application for leave to appeal and by the Minister for the late
filing of written submissions should be granted. I would
also agree
that the application for leave to appeal should be granted. My
difficulty with the main judgment lies in the manner
in which the
appeal is considered and disposed of, and this judgment will
address the question whether Ms F should succeed
in the appeal. I
have found the approach propagated by Froneman J extremely
interesting but am of the view that I need not
go there.
The K
test
The
test to determine vicarious liability in a case like this one was
authoritatively, comprehensively, clearly and helpfully
laid down
in the seminal judgment of this Court in the case of
K.
136
Unless we hold that
K
was wrongly decided this Court must
apply the test. At one level therefore, the appeal is not a
particularly complex one because
all we need to do is to apply the
K
test to the facts at hand. However, because the test laid
down in
K
is predictably flexible, its application could
give rise to difficulty in particular circumstances.
After
conducting a thorough and careful examination of relevant cases in
South Africa,
137
and abroad,
138
O’Regan J determined the test to be applicable:
139
“
The
common-law test for vicarious liability in deviation cases as
developed in
Rabie’s
case and further developed earlier in this judgment needs to be
applied to new sets of facts in each case in the light of the

spirit, purport and objects of our Constitution. As courts determine
whether employers are liable in each set of factual circumstances,

the rule will be developed. The test is one which contains both a
factual assessment (the question of the subjective intention
of the
perpetrators of the delict) as well as a consideration which raises
a question of mixed fact and law, the objective question
of whether
the delict committed is ‘sufficiently connected to the
business of the employer’ to render the employer
liable.”
140
Concerning
the relevance of the simultaneous wrongful commission and omission
to the evaluation of the sufficiency of the required
link, this
Court held:
“
An
employee can at the same time be committing a delict for his or her
own purposes, and neglecting to perform his or her duties
as an
employee and this has been recognised by our courts, at the very
least by Watermeyer CJ in
Feldman
.
In this case it is clear that the delict for which the applicant
seeks to hold the respondent liable is the rape by the three

policemen. That rape was clearly a deviation from their duties.
However when committing the rape, the three policemen were

simultaneously omitting to perform their duties as policemen.”
141
And
“
The
question of the simultaneous omission and commission . . . [is]
relevant to determining the question of vicarious liability.
In
particular, it will be relevant to answering the . . . question . .
. [whether there was] a sufficiently close connection
between that
delict and the purposes and business of the employer.”
142
The case before this Court
In
this case, as in
K
, the question whether Mr van Wyk, the
detective sergeant concerned, was subjectively on duty must be
answered in the negative.
A significant difference between this
case and
K
is that there the policemen concerned were on
duty immediately before the rape was committed, but the deviation
occurred only
when the rape was committed and the omission
simultaneously perpetrated. Here, Mr van Wyk had not been on duty,
either subjectively
or objectively, for at least four hours
preceding the rape. There has been a tendency to describe Mr van
Wyk’s position
during these hours as his having been on
“standby duty”. I consider this a contradiction in
terms. Mr van Wyk was
in fact on standby for duty in the sense that
he had to be available to go on duty if called.
The
only question that must be determined in this case is whether,
despite the fact that Mr van Wyk was not on duty at the time
he
committed the rape, the circumstances nonetheless lead to the
conclusion that there was a sufficient connection between
his
wrongful acts and commissions and the business of the employer to
render the employer liable. Something must now be said
about the
nature of the connection or link required. The connection must be
reasonably strong, significant and relevant. A
tenuous, irrelevant
or insignificant connection will not do.
The facts
The
facts of this case are relatively straight-forward. Mr van Wyk, a
detective sergeant in the South African Police Service
in George,
was responsible for investigating cases after police dockets had
been compiled. He was on regular duty from 07:30
on the morning of
14 October 1998 until 16:00 that afternoon. He had to be on standby
for duty from then until 07:30 on the
morning of 15 October 1998.
During the time 16:00 to 20:00 on 14 October, Mr van Wyk did go to
the police station from time
to time to collect new dockets that
had been allocated for his attention. He stopped performing this
function at 20:00 that
evening and went home. Mr van Wyk then
improperly used the police vehicle entrusted to him only so that he
may be able to go
to work if that became necessary, to go to a
nightclub. There he spent about two hours drinking beer and
watching people dance.
Ms F
had gone to the same club to play pool and dance. She said that a
difference she had with a friend resulted in her being
upset, going
outside, and wanting to go home. As it happened, a young man she
knew was one of the two people who had been with
Mr van Wyk at the
nightclub. Mr van Wyk and his two friends were at or in the car
when Ms F got there. She was ultimately offered
a lift home.
Mr
van Wyk took each of his male friends home and then asked Ms F, who
had been seated on the back seat of the car, to sit in
front. Ms F
obliged. Mr van Wyk then drove to a dark area in a
direction away from her home. Mr van Wyk brought the
car to a stop
at a dark spot. Ms F became sufficiently uncomfortable and
suspicious to open the car door, jump out and hide
in the dark.
Shortly afterwards, Ms F returned to the roadside to “hike”
home.
The
car driven by Mr van Wyk returned and Ms F’s evidence of her
encounter with him at this stage is interesting:
“
Then
he (Mr van Wyk) made as if he didn’t know me, then he asked me
what I was doing there. Then I said to him he knows
what I am doing
there, what is
he
trying to do, he must please just take me home. . . . Then I climbed
into the car again and we drove away from Kaaimans back
to George.”
143
(My translation and emphasis.)
Ms F
did say elsewhere in her evidence that she got into the car because
she believed he was a policeman and because she trusted
him on that
account. She inferred that he was a policeman, she said, because of
the police radio in the car, the files which
she thought were
police dockets and because Mr van Wyk had told her that he was a
private detective.
The
car was brought to a halt again. Ms F tried to escape once more but
Mr van Wyk prevented her. He brutally assaulted and
raped Ms F
outside the car.
Sufficient connection?
The
policemen in
K
, while in uniform and performing their duties
had offered to take a stranded young woman home in the fulfilment
of their duties
as policemen. Ms K had trusted them, because of
their status as police officers, in circumstances where it was
reasonable for
her to do so:
“
In
this case, and viewed objectively, it was reasonable for [Ms K] to
place her trust in the policemen who were in uniform and
offered to
assist her.”
144
On these
facts, this Court found three bases for the conclusion that the
delict (simultaneous omission and commission) bore a
sufficient
connection to the employment of the policemen:
The
policemen and their employer all carried a statutory and
constitutional duty to prevent crime and protect the members
of
the public.
145
The
police there had offered to assist Ms K and she had accepted their
offer and by doing so displayed her trust in the policemen
in
uniform, in circumstances where it was reasonable for Ms K to do
so.
146
There
had been a simultaneous commission and omission: the police had
committed the brutal rape; and their simultaneous omission
was
that they failed “while on duty to protect her from harm”
which, they had a general and a special duty to
do.
147
It
will have been noted that the fact that the policemen were on duty
at the time of the simultaneous commission and omission
was a
significant factor in the evaluation in
K
. I accept without
qualification that whether the policemen are on or off duty is not
a decisive factor. This is because there
may be circumstances in
which the connection is sufficiently strong even though policemen
are not on duty. A victim of the
wrongful conduct of an off-duty
police officer will necessarily have to go a longer way to
establish the connection. I would
say that the question of whether
the person who commits the delict is on or off duty, though not
decisive, is important. A
court should not lightly hold the
employer vicariously liable for the conduct of an off-duty police
officer. In that event,
the other factors must, in my view, be
sufficiently strong to make up for the absence of the duty element.
An
example will perhaps illustrate the point. Take the case where
vicarious liability is asserted arising from the conduct of
a
mechanic employed by the police service who, on a jaunt of his own,
arrested someone while he was off duty and not in uniform.
Assume
also that he claimed to be a policeman, hauled the victim to a
police station, made a docket, wrongfully and unlawfully
charged
him with attempted housebreaking and locked him up.
148
There is a much greater possibility of the required link being
established in a case of this kind in our constitutional order
than
in the case with which we are here concerned. The same would apply
if the mechanic raped the victim at the police station.
Mr
van Wyk was not on duty at the time he committed the rape. The
facts in this case must be carefully considered to ascertain

whether a sufficient link had been shown.
It
is true that Mr van Wyk drove a police car, there were dockets in
the car, and he said that he claimed to be a private detective.

These three factors go some way towards establishing some kind of
link. But whether the link is sufficient must be ascertained
by
first looking at the countervailing factors and conducting a
balancing exercise.
The
first factor to consider is that Mr van Wyk was off duty.
Immediately before he raped Ms F, he had been engaged in activities

that had nothing to do with his job. He had been decidedly on a
frolic of his own since 20:00 on the evening of 14 October.
He went
home for two hours and there is nothing to suggest that any
activity he engaged in there was even remotely connected
with his
work. He then used the official car allocated to him for work
purposes to go to a nightclub. There he most certainly
did not do
his duty. He did nothing even remotely connected with his work. He
drank beer and watched people dancing for about
two hours. When Mr
van Wyk first decided to give Ms F a ride home, he was admittedly
doing nothing to further his employer’s
ends. Indeed, in
doing so, he continued to use the official car improperly and to
continue his own jaunt. Moreover by that
time, he had not yet told
her he was a private detective and the fact that he was a policeman
had nothing to do with her decision
to board the car in the first
place. She did this because she knew one of the people with Mr van
Wyk.
From
then until he committed the rape, the only conduct attributable to
him which might point to the existence of the link was
his
untruthful statement that he was a private detective. He parked the
car in a dark place and behaved suspiciously, went
on ahead after
Ms F had sprung out of the car, came back to the point where Ms F
was, agreed to give her a lift once more and
then assaulted and
raped her. An important distinction between
K
and this case
is that here Mr van Wyk did not offer a lift to Ms F, and even if
he did, he did not do so in his capacity as
a police officer. There
was no official police promise of safe carriage. Indeed, he behaved
foolishly again by pretending not
to recognise her and asking her
what she was doing in that dark place. A far cry from the conduct
of a policeman who even if
not in uniform assures someone that he
is a policeman, that she will be safe with him and that he as a
policeman will do his
duty and take her home.
The
next factor that must be considered is whether, like in
K
,
there was a reasonable basis for Ms F to repose her trust in him by
reason of the car, the dockets and his statement that
he was a
private detective. Even if Ms F thought that Mr van Wyk was a
policeman, she could never have thought that he was
doing official
duty. This is because she must have known that he was in the
nightclub for purposes of personal pleasure and
nothing else. She
also knew that he had consumed so much liquor that in her view Mr
van Wyk was under the influence of liquor.
149
Mr van Wyk then, unlike a reliable policeman, acted sufficiently
suspiciously by stopping the vehicle in the pitch dark, to
warrant
her getting out of the motor vehicle and hiding. We must remember
that Ms F, at this stage, had all the information
that may have led
her to trust Mr van Wyk as a policeman. He had already behaved
inconsistently with that office and, in my
view, continued to do
so. When he spoke to her after she came out of hiding, he lied,
pretending that he did not know who she
was and what she was doing
there. She did not believe him. Above all, he gave Ms F no direct
assurance that he was a policeman
and that he would take her home.
An
important factor relevant to this question is the vulnerability of
potential victims to the wrongful exercise of power or
breach of
trust that might occur in a particular case.
150
On the night of the assault and rape Ms F was vulnerable in two
ways: she was a female child of 13 years. These characteristics

rendered her vulnerable to the threat of sexual violence and sexual
violence itself, including rape. As this Court rightly
accepted in
Carmichele
,
151
and reaffirmed in
K
:
152
“
Sexual
violence and the threat of sexual violence goes to the core of
women’s subordination in society. It is the single
greatest
threat to the self-determination of South African women.”
This
threat of intense violation is only aggravated by Ms F’s
tender years. In the application of the
K
test, courts are
mandated to approach the objective evaluation of the sufficiency of
the link with “explicit recognition”
of its “normative
content” and “with the spirit, purport and objects of
the Constitution in mind”.
153
I have no doubt that this Court is required to consider as a factor
the relative vulnerability of Ms F to sexual violence,
the more so
because the wrongdoer is a policeman. The more vulnerable a person,
the greater the need for that person to rely
on police protection
and trustworthiness. The question in this case therefore is whether
in the light of her vulnerability
Ms F needed to rely, and did
rely, on Mr van Wyk’s protection and trustworthiness as a
policeman sufficiently to render
her reliance reasonable. And we
must factor into the analysis the central fact that Ms F was 13
years old.
I
have come to the conclusion that taking full account of the fact
that Ms F was 13 years old, she did not, in the circumstances
of
this case, place enough reliance on Mr van Wyk’s protection
and trustworthiness as a policeman to warrant the conclusion
that
the grounds for trust were reasonable in the circumstances. The
fact that Mr van Wyk was a policeman cannot in the circumstances
be
regarded as a central factor in Ms F’s decision to board the
car on the second occasion. It was a factor but not uppermost
in
her mind at the time. She probably on account of her age and
because of her desperate situation understandably but naively

thought that despite his earlier impropriety he would nevertheless
take her home. But, in my view, the major factor which,
objectively
speaking, contributed to that decision was her desperate situation
and incalculable fear. Her decision to get into
the car cannot be
said to be unreasonable but nevertheless it cannot be said in the
circumstances that the fact that Mr van
Wyk was a policeman played
a sufficient role in her decision to render her trust in him as a
policeman reasonable.
Ms F
cannot be said to have had reasonable grounds to trust Mr van Wyk
as a policeman. On the contrary, she had compelling reason
to
distrust him.
The
next factor to consider is whether there was a simultaneous
omission and commission. There was none. Mr van Wyk was not
on
duty. Nor had he, in his capacity as a policeman, offered Ms F safe
conveyance home. The absence of a special duty leads
inevitably to
the conclusion that a simultaneous commission and omission was
non-existent.
An
important factor to bear in mind in this regard is the nature of Mr
van Wyk’s employment. It is true that he was a
policeman. But
there are many, many police personnel who perform a variety of
duties. It is important to assess the sufficiency
of the connection
by paying due attention to the precise nature of his employment. Mr
van Wyk was not employed to perform public
order maintenance
functions nor was it his particular job to ensure the safety of the
public. His work entailed the investigation
of cases after dockets
had been made by one or other of his colleagues.
In
the circumstances I conclude that there was not a sufficient
connection between Mr van Wyk’s heinous deeds and his

employment with the South African Police Service as a crime
investigator. It is undoubtedly so that the police service in our

country must be structured so that the police are sufficiently well
chosen and well trained to ensure that this kind of wrongful

conduct is minimised. I fear however that evil conduct by police
officers can never be completely eliminated. But the absence
of
sufficient training and careful choice have not been mooted in this
case as factors relevant to the sufficiency of the link.
Costs and conclusion
It
is fair that there should be no order as to costs. Ms F was in the
process of vindicating a right that is important to society
as a
whole and vital to her.
I
would accordingly dismiss the appeal and make no order as to costs.
For the Applicant: Advocate L M Olivier SC instructed by Wheeldon
Rushmere & Cole.
For
the First Respondent: Advocate R Williams SC and Advocate J van der
Schyff instructed by the State Attorney, Cape Town.
For
the First Amicus Curiae: Advocate H Barnes and Advocate S Wilson
instructed by the Institute for Security Studies c/o SERI Law
Clinic.
For the Second Amicus Curiae: Advocate M
Chaskalson SC and Advocate D Smit instructed by Webber Wentzel
Attorneys.
For the Third Amicus Curiae: Advocate K Pillay
instructed by Counsel for the Women’s Legal Centre Trust.
1
Minister
of Safety and Security v F
2011 (3) SA 487
(SCA) (
SCA
judgment
).
2
The
Minister of Safety and Security, as cited in these proceedings, has
been renamed the Minister for Police.
3
Sections
10 and 12 of the Constitution.
4
Section
205(2) and (3) of the Constitution.
5
Established
under section 5 of the
South
African Police Service Act 68 of 1995
(SAPS Act).
6
Standing
order 6 issued by the National Commissioner, South African Police
Service in June 1997, which was in force at the time,
provided as
follows:
“
6.
STAND-BY ALLOWANCE
6.1 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 not be regarded as
payment for overtime duties performed.)
6.2
CONDITIONS OF PAYMENT
6.2.1 As this allowance may vary from month to month,
as a result of the number of days on which Standby duties were
performed
by an official during a specific month, the allowance is
payable monthly on a retrospective basis and payment is based on the
total number of completed 24-hour cycles worked during a month.
6.2.2 The allowance is payable at the daily tariff for
each completed 24-hour cycle worked by an official. The fact that
personnel
are placed on standby for a week (for example) has the
effect that Standby duties and usual office duties are frequently
worked
simultaneously. . . .
. . .
6.3
PROCEDURES TO CONTROL, KEEP RECORD AND CLAIM
. . .
6.3.8 Standby must be limited to actual services/tasks
in which the availability, on a full time basis, of personnel with
certain
field expertise is of the essence and where the absence of
these personnel at short notice will hold serious consequences for
the provision of core SAPS services. The number of personnel needed
to be on standby as well as the actual call outs must also
be taken
into account. The need and extent of standby duties must also be
reviewed on a regular basis.
. . .
6.3.10 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. The mere fact that some personnel have been issued

with cell phones and are thus ‘available’ does not, in
itself, imply that these personnel are on Standby. The measures

outlined in the above paragraphs must still be adhered to.”
7
F
v Minister of Safety and Security and Another
2010 (1) SA 606
(WCC) (
High Court judgment
).
8
[2005]
ZACC 8
;
2005 (6) SA 419
(CC);
2005 (9) BCLR 835
(CC) (
K
).
9
High
Court judgment
above n 7 at para 43.
10
With
Snyders JA and Pillay AJA concurring.
11
In
determining this, the majority held that standby duty means that a
police official is off duty until called upon to resume
duty. In
relation to the claim that a police official is under duties of a
“continuing nature” the majority maintained
that the
fact that police officials may exercise police powers whilst off
duty, and have a discretion to determine whether or
not to do so, is
not equivalent to having an obligation to exercise powers.
12
SCA
judgment
above n 1 at para 16.
13
Id
at para 37.
14
Id.
15
With
Bosielo JA concurring.
16
See
[49] and [50] below.
17
The
State Attorney is the attorney for the Minister.
18
In
terms of the directions issued by the Court on 9 May 2011, the
Minister’s written submissions were to have been lodged
by 12
July 2011.
19
The
affidavits submitted were that of the Assistant State Attorney and
that of his secretary, the latter being a confirmatory
affidavit.
20
Section
39(2) of the Constitution. The importance of this section is
highlighted in
Carmichele v Minister of
Safety and Security and Another (Centre for Applied Legal Studies
Intervening)
[2001] ZACC 22
;
2001 (4)
SA 938
(CC);
2001 (10) BCLR 995
(CC) (
Carmichele
)
at para 54 and in
K
above n 8 at paras 15-7.
21
Section
205(3) of the Constitution.
22
Carmichele
above n 20 at para 62.
23
Id.
24
SCA
judgment
above n
1.
25
Neethling
et al
Law of Delict
6 ed (Lexis Nexis, Durban 2010) at
365-71.
26
See
for example
Ess Kay Electronics Pte Ltd and Another v First
National Bank of Southern Africa Ltd
2001 (1) SA 1214
(SCA) (
Ess
Kay Electronics
) at para 7; and
ABSA Bank Ltd v Bond
Equipment (Pretoria) (Pty) Ltd
[2000] ZASCA 136
;
2001 (1) SA 372
(SCA) at para 5.
27
1945
AD 733.
28
At
[49] below.
29
Feldman
above n 27 at 741.
30
1986
(1) SA 117
(A) (
Rabie
). Compare
Minister of Law and Order
v Ngobo
[1992] ZASCA 172
;
1992 (4) SA 822
(A) (
Ngobo)
.
31
Rabie
above n 30 at 134C-E.
32
Rabie
above n 30 was not followed in
Ngobo
above n 30 and
Ess
Kay Electronics
above n 26 as well as several other cases.
33
K
above n 8 at para 32.
34
Id
at para 44.
35
Id.
36
Id
at para 57.
37
Id
at para 32.
38
Section
12 provides:
“
(1) Everyone has the right to
freedom and security of the person, which includes the right—
(a) not to be deprived of freedom arbitrarily or
without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either
public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman
or degrading way.”
39
Section
10 of the Constitution.
40
Carmichele
at [37] above, also referred to in
K
above n 8 at para 18.
41
The
South African Police Service,
Crime Report 2010/2011
(September 2011)
http://www.saps.gov.za/
statistics/reports/crimestats/2011/crime_situation_sa.pdf
,
accessed on 5 December 2011.
42
Section
7(2) of the Constitution.
43
At
[57] above.
44
The
police service was established under section 5 of the
SAPS
Act above n 5, which refers to section 214 of the Interim
Constitution, Constitution of the Republic of South Africa Act
200
of 1993.
45
K
above n 8 at para 52.
46
Id
at para 57.
47
These
observations would generally apply to any kind of rape recognised in
our law. They are now being confined to the rape of
a woman or
girl-child by a man because of the facts of this case.
48
K
above n 8 at para 53.
49
See
the discussion on the sufficiently close link at [74]-[82] below.
50
K
above n 8 at para 32.
51
Id
at para 53.
52
Id
at para 57.
53
[2005]
ZACC 8
;
2005 (6) SA 419
(CC);
2005 (9) BCLR 835
(CC) (
K
) at
para 32.
54
The
decision in
K
attracted much comment, both critical and
favourable. See, for example, Neethling and Potgieter “Middellike
Aanspreeklikheid
van die Staat vir Verkragting deur Polisiebeamptes”
(2005)
TSAR
595
; Scott “
K v Minister of Safety and
Security
[2005] ZACC 8
;
2005 6 SA 419
(CC)” (2006)
De Jure
471;
Wagener “
K v Minister of Safety and Security
and the
Increasingly Blurred Line Between Personal and Vicarious Liability”
(2008) 125 (4)
SALJ
673
; Fagan “The Confusions of
K
”
(2009) 126 (1)
SALJ
156
; and Du Bois “State Liability
in South Africa: A Constitutional Remix” (2010) 25
Tulane
European and Civil Law Forum
139.
55
Although
I am of the view that a direct liability enquiry will yield the same
result in relation to wrongfulness, as that arrived
in relation to
“close connection” in the main judgment, the potential
defence relating to an ultimate finding of
negligence in a direct
liability enquiry may require a referral to the High Court –
see [125] and [148] below.
56
Minister
of Safety and Security v F
2011 (3) SA 487
(SCA) (
Supreme
Court of Appeal judgment
) at para 15.
57
Atiyah
Vicarious Liability in the Law of Torts
(Butterworths, London
1967) at 3, defines vicarious liability in the law of tort as “a
liability imposed by the law upon
a person as a result of (1) a
tortious act or omission by another, (2) some relationship between
the actual tortfeasor and the
defendant whom it is sought to make
liable, and (3)
some connection between the tortious act or
omission and that relationship
.” (My emphasis.)
58
K
above n 1 at paras 21-3.
59
Id
at para 19.
60
Id
at paras 32, 45 and 49.
61
See
Baxter
Administrative Law
(Juta & Co Ltd, Cape Town 1984)
at 624-9 and Wiechers
Administrative Law
(Butterworths,
Durban 1985) at 315-26, for a critical discussion of the development
of the vicarious liability of the state under
that doctrine.
62
Baxter
above n 9 at 622 and
Binda v Colonial Government
(1887) 5 SC
284
at 290.
63
Baxter
above n 9 at 623.
64
1
of 1910.
65
20
of 1957.
66
See
British South Africa Co v Crickmore
1921 AD 107
at 120-1.
67
See
Union Government (Minister of Justice) v Thorne
1930 AD 47
at
51 and 53.
68
Starting
with
Mhlongo and Another NO v Minister of Police
1978 (2) SA
551
(A) (
Mhlongo
) at 567-8. See also
Minister van Polisie
en ’n Ander v Gamble en ’n Ander
1979 (4) SA 759
(A);
Minister of Police v Rabie
1986 (1) SA 117
(A) and the
cases referred to in n 26 and n 30 of the main judgment.
69
Baxter
above n 9 at 631-2.
70
K
above n 1 at paras 51-3.
71
Supreme
Court of Appeal judgment
above n 4.
72
Id
at para 32.
73
Id
at para 35.
74
Id
at para 47.
75
K
above n 1 at paras 32 and 49.
76
Above
n 5.
77
Atiyah
above n 5 at 3-4.
78
Id
at 4.
79
Id.
80
See,
in general, Rautenbach and Malherbe
Constitutional Law
5 ed
(LexisNexis, Johannesburg 2009) at 105-7.
81
Section
239 of the Constitution states in relevant part:
“‘
organ of state
’
means—
any department of state or administration in the
national, provincial or local sphere of government; or
any other functionary or institution—
(i) exercising a power or performing a function in
terms of the Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public
function in terms of any legislation,
but does not include a court or a judicial officer”.
82
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC);
1998 (12) BCLR 1458
(CC) at para 56.
83
See
D’Oliveira,
State Liability for the Wrongful Exercise of
Discretionary Powers
(Doctoral Thesis) 1976 at 477-88; and
compare Wiechers above n 9 at Chapter 7 and Baxter above n 9 at
631-2.
84
Above
n 16.
85
Mhlongo
above n 16 at 566H-567A. The provisions of the State Liability Act
(above n 13) formed the sole basis of state liability then.
That is
no longer necessarily the case: sections 2 and 8(1) of the
Constitution make the state subject to the Constitution and
in
particular the Bill of Rights.
86
Wagener
above n 2.
87
Above
n 4 a
t para 34.
88
It
is important to bear in mind that there is a crucial difference
between the enquiries into wrongfulness and negligence in the
South
African law of delict, and the English tort of negligence and its
reliance on a ‘duty of care’. The concept
of ‘duty
of care’ straddles both negligence and wrongfulness, while
South African law clearly distinguishes these
two elements although
it sometimes uses language (such as ‘legal duty’ and
‘imposing liability’) which
might suggest an overlap.
See Brand “Reflections on Wrongfulness in the Law of Delict”
(2007) 124
SALJ
76 at 80. The difference between the position
in South African law and the English ‘duty of care’ has
been pointed
out and discussed in
Knop v
Johannesburg City Council
1995 (2) SA 1
(A) (
Knop
)
at 26I-27H;
Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v
Advertising Standards Authority SA
2006 (1) SA 461
(SCA)
(
Telematrix
) at para 14; and
Trustees, Two Oceans Aquarium
Trust v Kantey & Templer (Pty) Ltd
2006 (3) SA 138
(SCA)
(
Two Oceans
) at para 11. See also
Steenkamp NO v
Provincial Tender Board, Eastern Cape
[2006] ZACC 16
;
2007 (3)
SA 121
(CC);
2007 (3) BCLR 300
(CC) (
Steenkamp
) at paras
37-9.
89
See
[104]-[105] above.
90
See
[109] above. Whether the merely negligent breach of a public duty by
a state official would make the official personally liable
as well,
is something that need not be considered here. Compare Neethling
“Liability of the State for Rape by a Policeman:
The Saga
takes a new direction –
Minister of Safety and Security v F
2011 (3) SA 487
(SCA)”
(2011) 32
Obiter
428
at 437.
91
In
the words of Nugent JA,
Supreme Court of Appeal judgment
above n 4 at para 15.
92
1975
(3) SA 590
(A) (
Ewels
).
93
Id
at 597A-C.
94
See
Administrateur, Natal v Trust Bank van Afrika Bpk
1979 (3) SA
824
(A) at 833A (
Administrateur, Natal
);
Minister of
Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) (
Van
Duivenboden
) at para 12;
Gouda Boerdery BK v Transnet
2005 (5) SA 490
(SCA) (
Gouda
) at para 12;
Two Oceans
above
n 36 at paras 10-2;
Stewart and Another v
Botha and Another
[2008] ZASCA 84
;
2008 (6) SA 310
(SCA) at para 7;
McIntosh v Premier,
Kwazulu-Natal and Another
2008 (6) SA
1
(SCA) at para 12;
Brooks v Minister
of Safety and Security
2009 (2) SA 94
(SCA) at para 5;
Fourway Haulage SA
(Pty) Ltd v SA National Roads Agency Ltd
[2008] ZASCA 134
;
2009
(2) SA 150
(SCA) (
Fourway Haulage
)
at para 12; and
Freddy Hirsch Group
(Pty) Ltd v Chickenland
(Pty) Ltd
2011 (4) SA 276
(SCA) at para 38.
See also
Du Bois “Getting Wrongfulness Right: a Ciceronian Attempt”
in Scott & Visser (eds)
Developing Delict: Essays in Honour
of Robert Feenstra
(Juta, Cape Town 2000); Fagan “Rethinking
Wrongfulness in the Law of Delict” (2005) 122
SALJ
90;
Du Bois “State Liability in South Africa: A Constitutional
Remix” above n 2; and Price “The Impact of the
Bill of
Rights on State Delictual Liability for Negligence in South Africa”,
paper presented at the ‘Obligations
V Conference: Rights and
Private Law’, St Anne’s College, Oxford University
(2010).
95
See
Ewels
above n 40 at 597B–C;
Bayer South Africa (Pty)
Ltd v Frost
[1991] ZASCA 85
;
1991 (4) SA 559
(A) at 570J;
Indac Electronics
(Pty) Ltd v Volkskas Bank Ltd
[1991] ZASCA 190
;
1992 (1) SA 783
(A) at 797F;
Knop
above n 36 at 28A;
Mukheiber v Raath and Another
1999 (3)
SA 1065
(SCA) at para 27;
Van Duivenboden
above n 42 at para
12;
Gouda
above n 42 at para 12;
Two Oceans
above n 36
at para 12;
Hirschowitz Flionis v Bartlett and Another
[2006] ZASCA 23
;
2006
(3) SA 575
(SCA) at paras 27-8; and
MV MSC Spain; Mediterranean
Shipping Co (Pty) Ltd v Tebe Trading (Pty) Ltd
2008 (6) SA 595
(SCA) at para 14. See also Corbett “Aspects of the Role of
Policy in the Evolution of our Common Law” (1987) 104
SALJ
52 at 59; Fagan “Rethinking Wrongfulness in the Law of Delict”
above n 42 at 110-2; Nugent “Yes it is Always
a Bad Thing for
the Law: A Reply to Professor Neethling”
(2006) 123
SALJ
557
at 560-561; and Brand above n 36 at 80. See however Neethling
“The Conflation of Wrongfulness and Negligence: Is it Always

Such a Bad Thing for the Law of Delict?”
(2006) 123
SALJ
204
at 212-3 and Neethling and Potgieter “In (Self-)Defence of
the Distinction Between Wrongfulness and Negligence”
(2007)
124
SALJ
280
at 282-4.
96
Two
Oceans
above n 36 at para 10.
97
Id
at para 12.
98
Carmichele
v Minister of Safety and Security and Another (Centre for Applied
Legal Studies Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) (
Carmichele
(CC)) at para 43;
Van
Duivenboden
above n 42 at para 21;
Van Eeden v Minister of
Safety and Security (Women’s Legal Centre Trust, as Amicus
Curiae)
2003 (1) SA 389
(SCA) (
Van Eeden
) at paras 9-12;
Minister of Safety and Security v Hamilton
2004 (2) SA 216
(SCA) (
Hamilton
) at paras 16-9;
Gouda
above n 42 at
para 12;
Two Oceans
above n 36 at para 10; and
Minister of
Finance and Others v Gore NO
2007 (1) SA 111
(SCA) (
Gore
)
at para 82.
99
Steenkamp
NO v Provincial Tender Board, Eastern Cape
2006 (3) SA 151
(SCA)
at para 25;
Telematrix
above n 36 at paras 12-3; and
Two
Oceans
above n 36 at para 11.
100
Compare
Price above n 42 at 5 and at fn 38.
101
Carmichele
(CC) above n 46 and
Rail Commuters Action Group and Others v
Transnet Ltd t/a Metrorail and Others
[2004] ZACC 20
;
2005 (2)
SA 359
(CC);
2005 (4) BCLR 301
(CC) (
Rail Commuters
) at paras
73-8.
102
Van
Duivenboden
above n 42 at para 21;
Van Eeden
above n 46
at para 12;
Minister of Safety and Security v Carmichele
2004
(3) SA 305
(SCA) (
Carmichele
(SCA)) at para 43;
Hamilton
above n 46 at paras 16-9;
Two Oceans
above n 36 at para 10;
Gouda
above n 42 at para 12; and
Gore
above n 46 at
para 82.
103
Determining
wrongfulness in these matters involves the balancing of identifiable
norms (
Van Duivenboden
above n 42 at para 21). These
identifiable norms will include constitutional norms. An important
constitutional norm that will
factor in cases such as these is the
norm of accountability. For its development see
Olitzki Property
Holdings v State Tender Board and Another
2001 (3) SA 1247
(SCA)
at para 31;
Van Duivenboden
above n 42 at para 20; and
Faircape Property Developers (Pty) Ltd v Premier, Western Cape
2000 (2) SA 54
(C) at 65B-H. For applications thereof see
Van
Eeden
above n 46 and
Hamilton
above n 46. See also the
favourable discussion of accountability by this Court in
Rail
Commuters
above n 49 at 73-8. This norm was succinctly stated by
Harms JA in
Carmichele
(SCA) above n 50 at para 43 as
follows: “[T]he State is liable [in delict] for the failure to
perform the duties imposed
upon it by the Constitution unless it can
be shown that there is compelling reason to deviate from that norm.”
104
Van
Duivenboden
above n 42 at para 12. See also
Knop
above n
36 at 24G-H.
105
This
is not the way in which some commentators view the effects of
post-constitutional case law. They appear to assume that the

discussion of the norm of accountability in the wrongfulness enquiry
provides an independent, not additional, reason for imposing

delictual liability. See Fagan “Rethinking Wrongfulness in the
Law of Delict” above n 42 at 134-6; and Price above
n 42 at
14-6.
106
Compare
Du Bois “Getting Wrongfulness Right: a Ciceronian Attempt”
above n 42 at 31-2.
107
See
Steenkamp
above n 36 at para 86,
Van Duivenboden
above
n 42 at para 21; and
Carmichele
(SCA) above n 50 at para 43.
108
Knop
above n 36 at 33B;
Van Duivenboden
above n 42 at para 21;
and
Van Eeden
above n 46 at para 19.
109
Knop
above n 36 at 33C-D;
Van Duivenboden
above n 42 at para
22;
Van Eeden
above n 46 at para 21; and
Hamilton
above
n 46 at para 35.
110
Administrateur,
Natal
above n 42 at 833H-834A;
Van Duivenboden
above n 42
at para 13; and
Hamilton
above n 46 at para 17.
111
Van
Duivenboden
above n 42 at para 19;
Van Eeden
above n 46
at para 22; and
Fourway Haulage
above n 42 at para 23.
112
Fourway
Haulage
above n 42 at para 27.
113
Where
this is the case it will not be necessary to inquire into
wrongfulness.
114
This
additional safeguard to the state appears not to be available if its
liability is vicarious in the traditional sense.
115
See
[91] above.
116
As
was done in
Carmichele
(CC) above n 46 at para 84.
117
In
Robinson v Randfontein Estates GM Co Ltd
1925 AD 173
at 198,
Innes CJ held that “[t]he object of pleading is to define the
issues; and parties will be kept strictly to their
pleas where any
departure would cause prejudice or would prevent full enquiry. But
within those limits the Court has a wide discretion.
For pleadings
are made for the Court, not the Court for pleadings.” See also
Barkhuizen v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC);
2007
(7) BCLR 691
(CC) at paras 37-42.
118
Shill
v Milner
1937 AD 101
at 105 and
Bank of Lisbon and South
Africa Ltd v The Master
and Others
1987 (1) SA 276
(A) at
290.
119
Compare
Two Oceans
above n 36 at para 9.
120
See
above n 46.
121
In
my view these considerations are more appropriate to determine
whether the state was negligent in a direct liability enquiry.
See
[125] above and [148] below.
122
See
Fagan “The Confusions of
K
” above n 2 at 199-204.
123
See
Feldman (Pty) Ltd v Mall
1945 AD 733
at 744 and
K
above n 1 at paras 48-9 and 53.
124
Van
Eeden
above n 46 at para 13.
125
K
above n 1 at para 52.
126
Carmichele
(CC) above n 46 at para 62. See also
S v Baloyi (Minister of
Justice and Another Intervening)
[1999] ZACC 19
;
2000 (2) SA 425
(CC);
2000 (1) BCLR 86
(CC) at para 13.
127
Supreme
Court of Appeal judgment
above n 4 at para 14.
128
The
High Court noted that Mr van Wyk confirmed during his testimony that
“the unmarked vehicle had been allocated to him
for the
purpose of fulfilling his stand-by duties.”
F v Minister of
Safety and Security and Another
2010 (1) 606 (WCC) SA at para
15.
129
See
above n 46.
130
Gore
above n 46 at paras 86-8.
131
See
Supreme Court of Appeal judgment
above n 4 at paras 44-5.
132
Section
40
of the
Criminal Procedure Act 51 of 1977
.
133
Compare
Minister of Safety and Security v Luiters
[2006] ZACC 21
;
2007 (2) SA 106
(CC);
2007 (3) BCLR 287
(CC) at para 35.
134
It
is ironic that because the pleadings are of the ‘course and
scope’ variety, this possible last line of defence
for the
state does not feature in a vicarious liability enquiry.
135
The
Minister of Safety and Security.
136
K
v Minister of Safety and Security
[2005] ZACC 8
;
2005 (6) SA 419
(CC);
2005 (9) BCLR 835
(CC) (
K
).
137
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others
[2004] ZACC 20
;
2005 (2) SA 359
(CC);
2005 (4) BCLR 301
(CC);
S v Basson
[2004]
ZACC 13
;
2005 (1) SA 171
(CC);
2004 (6)
BCLR 620
(CC);
Commissioner, South
African Revenue Service v TFN Diamond Cutting Works (Pty) Ltd
2005
(5) SA 113
(SCA);
Jordaan v Bloemfontein Transitional
Local Authority and Another
2004 (3) SA 371
(SCA);
Bezuidenhout
NO v Eskom
2003 (3) SA 83
(SCA);
Minister van Veiligheid en Sekuriteit v Phoebus Apollo
Aviation BK
2002 (5) SA 475
(SCA);
Govender v Minister of
Safety and Security
2001 (4) SA 273
(SCA);
Ess
Kay
Electronics Pte Ltd and Another v First National Bank of Southern
Africa Ltd
2001 (1) SA 1214
(SCA);
ABSA Bank Ltd v Bond
Equipment (Pretoria) (Pty) Ltd
[2000] ZASCA 136
;
2001 (1) SA 372
(SCA);
Minister
of Safety and Security v Jordaan t/a Andre Jordaan Transport
2000 (4) SA 21
(SCA);
Sea Harvest Corporation (Pty) Ltd and
Another v Duncan Dock Cold Storage (Pty) Ltd and Another
2000
(1) SA 827
(SCA);
Venter v Bophuthatswana Transport Holdings
(Edms) Bpk
[1997] ZASCA 16
;
1997 (3) SA 374
(SCA);
Minister
of Law and Order v Ngobo
[1992] ZASCA 172
;
1992 (4) SA
822
(A);
Tshabalala v Lekoa City Council
1992 (3) SA
21
(A);
Minister of Police v Rabie
1986
(1) SA 117
(A);
African Guarantee &
Indemnity Co Ltd v Minister of
Justice
1959 (2) SA
437
(A);
Feldman (Pty) Ltd v Mall
1945 AD 733
;
Estate
Van der Byl v Swanepoel
1927 AD 141
;
Mkize v Martens
1914 AD 382
; and
Hirsch
Appliance Specialists v Shield Security Natal (Pty) Ltd
1992 (3) SA 643
(D).
138
Lister
and Others v Hesley Hall Ltd
[2001] UKHL 22
;
[2002] 1
AC 215
(HL);
2001 (2) All ER 769
;
Bazley
v Curry
1999 Can LII 692 (SC)
;
[1999] 2 SCR 534
; (1999) 174
DLR (4
th
)
45;
Jacobi v Griffiths
[1999]
2 SCR 570
;
(1999) 174 DLR (4
th
)
71; and
Primeaux v United States
[1999] USCA8 502
;
181 F 3d 876
(8
th
Cir 1999).
139
The
applicable test in our country in the constitutional context was
determined after the evaluation of relevant cases both in
South
Africa and abroad. But it cannot be said that O’Regan J
embraced the position articulated in the cases to which the
judgment
refers.
140
Above
n 2 at para 45.
141
Id
at para 48.
142
Id
at para 49.
143
“
Toe
maak hy of hy my nie ken nie, toe vra hy vir my wat doen ek daar.
Toe sê ek hy weet wat ek daar maak, wat probeer hy
doen, hy
moet my net asseblief huis toe vat. . . . Toe het ek weer in die kar
geklim en toe het ons van Kaaimans af gery terug
George toe.”
144
Above
n 2 at para 52.
145
Id
at para 51.
146
Id
at paras 51 and 52.
147
Id
at para 53.
148
These
facts are taken from the case of
Minister of Police v Rabie
above n 3.
149
In
paragraph 10 of her statement to the police she said the following
referring to Mr van Wyk “[h]y was onder die invloed.”
150
Bazley
above n 4 at para 41 as quoted in
K
above n 2 at para 38.
151
Carmichele
v Minister of Safety and Security and Another (Centre for Applied
Legal Studies Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at para 62.
152
Above
n 2 at para 18.
153
Id
at para 44.