The Dignity Jurisprudence of the Constitutional Court of South Africa: Cases and Materials, Volumes I & II

K

K v. Minister of Safety and Security  () SA  (CC) CASE SUMMARY Facts The applicant launched an action seeking damages in delict from the minister of safety and security for the harm she suffered as a result of being raped and assaulted in the early hours of  March . Her assailants were three uniformed and onduty police sergeants. Ms. K had had an argument with a boyfriend with whom she had been out for the evening and was looking for a telephone when she met the police officers at approximately  o’clock in the morning. They offered her a lift home which she accepted. They then took her to a deserted place, where they raped and abandoned her. The three policemen were subsequently convicted of rape and kidnapping, and sentenced to life in prison by the Johannesburg High Court. Legal History The applicant argued that as the employer of the police officers, the Minister was vicariously liable in delict for their conduct. The High Court held that the actions of the police officers fell outside the course and scope of their employment, and that the minister therefore could not be liable for their conduct. On appeal, the SCA upheld the High Court’s judgment. Ms. K sought leave to appeal to the Constitutional Court. K Issues Was the minister vicariously liable to pay damages for the actions of the policemen? Decision of the Constitutional Court Justice O’Regan, writing for a unanimous court, held that the minister was liable and upheld the appeal with costs. She discussed the existing common-law principles of vicarious liability and the approach taken to vicarious liability in some other jurisdictions . She concluded that there nevertheless existed a sufficiently close relationship between their employment and the wrongful conduct. Three factors lead to Justice O’Regan’s conclusion. First, the policemen bore a statutory and constitutional duty to prevent crime and protect the members of the public. Secondly, since the applicant accepted an offer of assistance from the policemen in circumstances in which she needed assistance, it was their duty to supply it and it was reasonable of her to accept their offer (as policemen).Thirdly, the wrongful conduct of the policemen coincided with their failure to perform their duties to protect the applicant. Order Justice O’Regan accordingly found that the minister was liable for damages to the applicant for the wrongful conduct of the policemen and referred the matter back to the High Court for the amount of damages to be determined by that court. Comment The court in K found that there was a sufficient basis to find the minister vicariously liable for the kidnapping and rape of Ms. K. Is an award of damages against the state likely to deter members of the police service from committing acts that they already know constitute criminal offences? Or might the judgment provide an incentive to the state to improve training and oversight of police officers? If that is the appropriate goal, isn’t there a more effective remedy than an award of damages? Justice O’Regan emphasizes the need for the public to be able to trust the police. Does the court’s decision, which holds the minister responsible for the behavior of aberrant police officers, enhance public confidence in the police or simply serve as a painful reminder that policemen, like everyone else, are not all angels? JUSTICE O’REGAN A Constitutional Issue? [] [. . .] The first question that arises is whether the matter raises a constitutional issue. The respondent argues that it does not, at least to the extent that the case concerns the application of the principles of vicarious liability. It relies on this court’s judgment in Phoebus Apollo Aviation CC v. Minister of Safety and Security [ ()  Legal Cases (–) SA  (CC)]. In that case the appellant had sought to hold the minister of safety and security liable in delict for damages arising from the theft by certain policemen of property of the appellant. It was common cause that the appellant was robbed of a large sum of money by an armed gang. The investigating officer traced the proceeds of the robbery but when he arrived he discovered that the money had already been taken by three dishonest policemen. It was not clear where these three policemen had come by the information concerning the location of the stolen money, but it was clear that...