We must be able to trust our cops

The recent Constitutional Court decision in the matter of a woman gang-raped by on-duty policemen has emphasised the court’s view that “few things can be more important to women than freedom from the threat of sexual violence”.

The court made this finding while holding that the minister of safety and security was liable for damages arising from a lawsuit instituted by the rape survivor, named in the court papers as Ms K. In March 1999 she was gang-raped by three on-duty policemen who had offered to take her home.

In deciding whether the case raised a constitutional issue, the court held that the question of the protection of Ms K’s rights to security of her person, dignity, privacy and substantive equality are of profound constitutional importance.
The court also held that the minister should pay Ms K’s high court, Supreme Court of Appeal (SCA) and Constitutional Court costs.

The Women’s Legal Centre presented argument to the Constitutional Court on May 10 on behalf of Ms K in her appeal against the judgement of the SCA after it had refused her claim for damages against the minister. The centre welcomes the judgement as a positive step towards state accountability for the meaningful protection of survivors of gender-based violence in the context of a human rights dispensation based on the founding principles of dignity, equality and freedom.

Quoting from its earlier decision in Carmichele (where a woman succesfully sued the state after she was sexually assaulted by an awaiting-trial repeat sex offender out on a warning), the Constitutional Court reiterated that “few things can be more important to women than freedom from the threat of sexual violence”, that it “goes to the core of women’s subordination in society” and “is the single greatest threat to the self-determination of South African women”.

With this sentiment in mind, the court accepted argument by the Women’s Legal Centre that as the employer of the police officers, the minister is vicariously liable for their wrongful conduct both in raping Ms K and in failing to perform their duty to protect her.

Judge Kate O’Regan, writing for a unanimous court, held that although the policemen’s conduct constituted a clear deviation from their duty, there nevertheless existed a sufficiently close connection between their employment and the wrongful conduct to hold the minister, as their employer, liable.

Judge O’Regan reasoned that three inter-related factors lead to this conclusion: firstly, the policemen bore a statutory and constitutional duty to prevent crime and protect members of the public, a duty which also rests on their employer (the minister); secondly, Ms K accepted an offer of assistance from the on-duty policemen in circumstances in which she was stranded, needed assistance and reasonably accepted it from those duty bound to offer it to her; and thirdly, the wrongful conduct of the policemen in raping Ms K coincided with their failure to perform their duties to protect her.

The court held that the opportunity to commit the crime would not have arisen but for the trust Ms K placed in them precisely because they were policemen — a trust which, the court stated, harmonises with the constitutional mandate of the police and the need to ensure that mandate is successfully fulfilled.

The court specifically noted that 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 and emphasised the necessity for society to place reasonable trust in members of the South African Police Service if their mandate is to be performed efficiently.

The court held further that the principles of vicarious liability and its application needed to be developed to accord more fully with the spirit, purport and objects of the Constitution. It pointed out that this conclusion does not mean that an employer will be saddled with damages simply because injuries caused by its employees might be horrendous. Rather, it implies that the courts, bearing in mind the values the Constitution seeks to promote, will decide whether a case before it is of the kind that in principle should render the employer liable.

What this case makes clear, however, is that an intentional deviation from duty does not automatically mean that an employer will not be liable.

The matter has been re-referred to the Johannesburg High Court for a determination of the amount of damages payable by the minister to Ms K.

Hayley Galgut is an attorney at the Women’s Legal Centre in Cape Town

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