The right to be free from all forms of violence, from both public and private sources, will come under the spotlight at the Constitutional Court on Tuesday.
In March 1999, three police sergeants raped and assaulted a woman and were subsequently convicted of rape and kidnapping and sentenced to life in prison by the Johannesburg High Court.
The woman then sought damages from the minister of safety and security under the common law of delict for the harm she suffered as a result of her rape and assault.
She argued that the minister was vicariously liable as the employer of the police officers.
However, a high court found that their actions fell outside the course and scope of their employment, so the minister could not be held vicariously liable for their conduct. The Supreme Court of Appeal in Bloemfontein upheld this judgement on appeal.
The woman believes that the police officers, in allowing the rape and participating in it, failed to discharge their duty to prevent and combat crime and ensure public safety.
The court will have to decide whether the application raises constitutional issues, and whether leave to appeal against the judgement of the Supreme Court of Appeal should be granted.
The woman argues that the Constitution places a duty on the state to respect, protect, promote and fulfil the rights in the Bill of Rights. One of these is the right to be free from all forms of violence, from both public and private sources.
The police service is one of the primary organs through which the state attempts to meet this obligation.
If the court decides that the application does raise constitutional issues, it will then have to decide whether the minister is directly liable for the conduct of the police officers, given the constitutional obligations upon the police, and whether the minister is liable under the common law of delict for the conduct of the officers. — Sapa