A woman accompanies her boyfriend to a party. They quarrel. She walks to find a telephone to call her mother to collect her. She comes upon a petrol station where she seeks to persuade the attendant to allow her the use of the phone. As this negotiation proceeds, a police car draws into the petrol station. A sergeant in full uniform enquires as to her problem and offers to drive her home. He and his two uniformed colleagues then rape her in the car. They are subsequently convicted. The woman sues the Minister of Safety and Security for damages. The legal principle upon which she bases her claim is that of vicarious liability — the minister, as the employer of these three police officers, is liable for unlawful actions committed by employees in the course and scope of their employment.
The stark brutality of these facts cries out to one’s sense of justice. Surely, in our new constitutional democracy, the state that employs police and presents them as being capable of protecting the community, thereby discharging the state’s protective obligations to the citizens of this country, must be liable in this case? After all, the woman was entitled to believe that a uniformed police officer would drive her safely to her home.
The Supreme Court of Appeal (SCA) thought otherwise. Judge Douglas Scott, on behalf of a unanimous court, held that the police officers had acted in self-gratification and, thus, had deviated so materially from their official duties that it could not be said that they had acted in the course and scope of their employment. But what about the impact of the Constitution? Judge Scott and his colleagues could not accept that their interpretation of the concept of vicarious liability was in any way incongruent with the values of the Constitution.
Before 1994 that would have been that. Mercifully for the plaintiff, we now have a Constitutional Court. It decided the dispute in a manner in which justice and the law mesh into a coherent whole. Judge Kate O’Regan, writing for the court, observed that the legal principle of vicarious liability was based on policy grounds, being the desirability of affording claimants an efficacious remedy for harm suffered and, further, the need to ensure that employers took steps to ensure that their employees did not harm members of the broader community. The Constitution mandated the consideration of another policy ground. The police have an obligation to protect the community. It is a duty that ultimately rests on the state. The complainant in this case was entitled to rely on the protection of uniformed policemen. Where police, on duty, breach such trust in this savage manner, legal policy drawn from the Constitution dictates that the employer be liable for damages.
In reading this judgement, the only question that arises is whether, without the normative value system of the Constitution, the same result could not have been achieved. In other words, did the value system of the pre-Constitutional type, as viewed by the SCA, refuse to recognise this kind of claim? Even without a Constitution, the SCA judgement appears to adopt a myopic view of the obligations of the police force to the public it is supposed to serve.
This question leads to an even more serious concern: Do we still have two different methods of reading law, 11 years into our constitutional democracy? There is the pre-1994 reading, which refuses to deconstruct assumptions and values encrusted into our law over the past century, versus another method of reading that insists the first duty of a court is to examine the congruence of existing common law with the Constitution.
It would be simplistic to conclude that the division of readers can simply be drawn between the SCA and the Constitutional Court. The SCA, for example, has recently handed down a most progressive judgement on the rights of squatters (Modder-klip) and another on gay marriages (Fourie). But, both within the SCA and the high courts, there are two kinds of legal readers: those who begin with the normative framework of the Constitution and those who commence with an assumption about the pristine purity of the common law as based on Roman-Dutch law.
In the case of the raped woman, the Constitutional Court asserted itself yet again to proclaim the primacy of the first reading. In doing so, it not only struck a blow for the accountability of organs of state to the public, but for the rights of citizens (mainly the most vulnerable), who are entitled to rely on the police. The case concerns the painful process of legal transformation and the need to debate the role of the judicial readers of the law.