Rape by cops: State loses court case

The Constitutional Court ruling on Monday that the Minister of Safety and Security was liable for the rape of a woman by three policemen was “extremely positive”, the attorney for the rape victim said on Monday.

“It is an extremely positive judgement. She is extremely happy with the outcome of the Constitutional Court case,” Hayley Galgut of the Women’s Legal Centre said on behalf of the woman.

In March 1999 the woman had a fight with her boyfriend at a club in the early hours of the morning and, because the club did not have a telephone available, she went to a petrol station to phone her mother.

An on-duty uniformed policeman who had stopped to buy a cold drink, heard of her plight and offered to take her home.
She got into the police vehicle where another two policemen, also in uniform and on duty, were waiting.

On the way, the three sergeants—Nathaniel Rammutle, Ephraim Gabaatlholwe and Edwin Nqandela—turned in the wrong direction and when she pointed this out, they covered her head with a policeman’s jacket and smothered her. When she resisted and asked them to remove it, they pulled it tighter so that she could hardly breathe.

She was punched in the stomach and told to be quiet. They stopped the police vehicle, took off her jeans, underwear, shoes and socks, and each raped her while she tried to fight them off.

They then put some of her clothes back on, helped her out of the car, removed the jacket and sped off.

All three policemen were tried and sentenced to life imprisonment for the rape and ten years’ imprisonment for kidnapping.

The woman, who may not be named because she is the victim of a sex crime, unsuccessfully sought R515 000 in damages from the Minister of Safety and Security in the Johannesburg High Court and Supreme Court of Appeal.

She did not pursue a case against the policemen because they are in prison and would be probably not be able to pay damages.

The other two courts found that the actions of the police officers fell outside the course and scope of their employment and that consequently the minister could not be held vicariously liable for their conduct.

The Constitutional Court was told by the advocate for the Safety and Security ministry that because it is not part of a policeman’s duty to rape, they could not be held liable.

They said the woman was not in danger or in distress at the time she was offered a lift, she was not under arrest and that the policemen’s contract with her was merely one of transport. The policemen had also broken an internal rule by giving her a lift.

But the Constitutional Court found that although the woman was at risk, and although the policemen’s conduct was a clear deviation from their duty, there was a sufficiently close relationship between their employment and the wrongful conduct.

The policemen bore a statutory and constitutional duty to prevent crime and protect the members of the public—a duty that also rested on their employer.

“One of the purposes of wearing uniforms is to make police officers more identifiable to members of the public who find themselves in need of assistance,” the judgement said.

“There is an intimate connection between the delict committed by the policemen and the purposes of their employer. This close connection renders the respondent [the Minister] liable vicariously to the applicant for the wrongful conduct of the policemen.”

In handing down judgement, Judge Kate O’Regan said: “It is important that members of the public trust the police.”

Asked for comment, Ministry of Safety and Security spokesperson Trevor Bloem told Sapa: “We won’t have any comment on that until we have studied the judgement.”

The case, which is expected to have a future bearing on methods of establishing liability and vicarious liability, will return to the Johannesburg High Court to determine the amount of damages the woman is entitled to.

The Minister was also ordered to pay all legal costs the woman incurred during the case. - Sapa

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