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Last Updated: 8 June 2005
THE SUPREME COURT OF APPEAL
OF SOUTH
AFRICA
Reportable
Case no: 456/03
In the matter between:
NATASHA KERN
Appellant
and
THE MINISTER OF
SAFETY AND SECURITY Respondent
_____________________________________________________
Coram : Scott,
Mthiyane, Van Heerden JJA, Erasmus et Comrie
AJJA
Date of Hearing : 2 September 2004
Date of
delivery : 11 November 2004
Summary: Policemen guilty of
rape – whether rape committed in the course and scope of their employment
so as to render the
respondent vicariously liable – order in para
9
____________________________________________________
JUDGMENT
_____________________________________________________
SCOTT
JA/...
SCOTT JA:
[1] The appellant, a young woman in her
early twenties, was raped by three policemen in the early hours of 27 March 1999
in circumstances
described more fully below. She sued the respondent and the
three policemen for damages in the Johannesburg High Court but subsequently
abandoned her claim against the policemen, each of whom was sentenced to life
imprisonment for rape and 10 years’ imprisonment
for kidnapping. The sole
question in issue in the court below was whether the respondent was vicariously
liable for the conduct of
the rapists. The parties agreed upon a statement of
facts and no evidence was led at the trial. Flemming DJP ordered absolution from
the instance but granted leave to appeal to this court.
[2] The facts are
shortly these. The appellant and her male companion had a disagreement at a
place of entertainment in Westonaria
and he refused to take her home. It was
then about
3 am on 27 March 1999. She went to a nearby all-night shop at a
petrol station to telephone her mother to ask the latter to come and
fetch her.
The person on duty at the shop explained that the telephone could take incoming
calls only. In the meantime, a police
vehicle pulled into the petrol station.
The occupants were the three policemen. They were all in uniform and all enjoyed
the rank
of sergeant. The one entered the shop and, on overhearing the
appellant’s request to use the telephone, offered to give the
appellant a
lift home. She accepted, climbed into the car and sat in the back. The vehicle
drove off in the direction of the appellant’s
house. The appellant did not
talk to the policemen but at some stage they began speaking to each other in an
African language which
she did not understand. Thereafter she dozed off but
awoke when the vehicle slowed down at a stop street. Instead of proceeding in
the direction of her house the driver executed a turn to the left. She
remonstrated with him and told him that they were on the wrong
road. She was
immediately told to keep quiet and one of the others threw a police jacket over
her head and held her down. She resisted
with fortitude, kicking and screaming,
but to no avail. The jacket over her head was pulled tight and she was struck a
hard blow
to the stomach. The vehicle stopped and she bravely continued to
struggle. She felt a knife at her throat and was told to keep quiet
or she would
be killed. Despite her resistance she was overpowered and forcibly raped by each
of the policemen in turn. When they
had finished they drove off leaving her to
find her own way home.
[3] As previously indicated, the sole basis on which
it was sought, both on the pleadings and in argument, to recover damages from
the respondent was that he was vicariously liable for the conduct of the
rapists. The conduct relied upon was (a) the actual rape
of the appellant by
each of the three policemen and (b) the failure of each to intervene when one or
other of their co-rapists was
raping the appellant.
[4] The legal principles
underlying vicarious responsibility are well-established. An employer, whether a
minister of State or otherwise,
will be vicariously liable for the delict of an
employee if the delict is committed by the employee in the course and scope of
his
or her employment. Difficulty frequently arises in the application of the
rule, particularly in so-called ‘deviation’
cases. But the test,
commonly referred to as the ‘standard test’, has been repeatedly
applied by this court. Where there
is a deviation the inquiry, in short, is
whether the deviation was of such a degree that it can be said that in doing
what he or
she did the employee was still exercising the functions to which he
or she was appointed or was still carrying out some instruction
of his or her
employer. If the answer is yes, the employer will be liable no matter how badly
or dishonestly or negligently those
functions or instructions were being
exercised by the employee. (See eg Feldman (Pty) Ltd v Mall 1945 AD 733
at 774; Viljoen v Smith 1997 (1) SA 309 (A) 315D-317A; Minister of
Safety and Security Services v Jordaan t/a Andre Jordaan Transport 2000 (4)
SA 21 (SCA) para 5 and more recently Minister van Veiligheid en Sekuriteit v
Japmoco BK h/a Status Motors 2002 (5) SA 649 (SCA) paras 11-16 and
Minister van Veiligheid en Sekuriteit v Phoebus Appollo Aviation BK 2002
(5) SA 475 (SCA) paras 8-18.) Notwithstanding the difficult questions of fact
that frequently arise in the application of the
test, it has been recognised by
this court as serving to maintain a balance between imputing liability without
fault (which runs
counter to general legal principles) and the need to make
amends to an injured person who might otherwise not be recompensed. From
the
innocent employer’s point of view, the greater the deviation the less
justification there can be for holding him or her
liable.
[5] As far as the
actual rape of the appellant is concerned, it was ultimately conceded by counsel
for the appellant that if the test
outlined above were to be applied, there
would be no vicarious liability on the part of the respondent. The concession
was well made.
No doubt a rape which is shown to have been committed to
intimidate for the purpose of illiciting information in solving a crime
could
possibly result in the respondent being held vicariously liable, but nothing
like that occurred in the present case. By the
very nature of the crime, the
circumstances in which a policeman could commit rape in the course and scope of
his employment must
be extremely rare. In the present case, everything points to
the three policemen being motivated by nothing more than self-gratification.
Acting in concert, they deviated from their functions and duties as policemen to
such a degree that it cannot be said that in committing
the crime of rape they
were in any way exercising those functions or performing those
duties.
[6] Counsel submitted, however, that a different test should be
applied. He contended that once it was shown that the policemen were
on duty
when they gave the appellant a lift and that in offering to take her home safely
they were acting within the course of their
duties as policemen to prevent
crime, then by the very act of deviating from those duties they rendered the
respondent vicariously
liable. In other words, it was the deviation itself that
rendered the respondent liable and the degree of the deviation was wholly
irrelevant. This is not the law and never has been; nor was counsel able to
refer to any authority in support of such a novel proposition.
In my view it is
without merit.
[7] The further argument advanced on behalf of the appellant
was that each policeman was under a continuing duty to prevent the commission
of
crime and that therefore while one was raping the appellant the other two
remained under a duty to intervene. Accordingly, so
the argument went, the
respondent was vicariously liable by reason of the failure on the part of the
other two to intervene. Counsel
sought to rely on Minister van Polisie v
Ewels 1975 (3) SA 590 (A). The reliance was misplaced. The issue in that
case was whether the failure on the part of a number of policemen
to intervene
when another, one Barnard, assaulted the plaintiff was wrongful for the purpose
of establishing Aquilian liability.
The matter was decided on exception and the
decision was predicated on the assumption that the policemen failing to
intervene were
acting in the course and scope of their employment with the
Minister of Police (at 594F) while Barnard, also a policeman, was not
(595F). In
the present case the element of wrongfulness is not in issue. The conduct of all
three policemen was not only wrongful,
it was criminal from the time they
conspired to rape the appellant until the time the attack ended. Indeed, the
inference is overwhelming
that the three policemen formed a common intention to
rape the appellant at some stage before the driver turned off the road leading
to the appellant’s house and drove to the spot where all three raped her.
Each gave support to the others in committing the
crime. If only one had
physically raped the appellant, all three could nonetheless have been convicted
of rape. They were at all
times acting in pursuance of a common purpose. To
suggest, therefore, that one would have been acting in the course and scope of
his employment while another physically raped the appellant, would cease to so
act when it was ‘his turn’, and then resume
acting in the course and
scope of his employment while the third raped the appellant, borders on the
absurd.
[8] Yet a further argument that was raised is that the common law
must be developed so as to render the State vicariously liable in
a situation
such as the present. How this could be done without imposing absolute liability
on the State was not spelt out; it was
simply left in the air. It is, however,
unnecessary to consider the question, which in any event would best be dealt
with by the
legislature should a change in the law be considered necessary. In
the recent decision of this court in Minister van Veiligheid en Sekuriteit v
Phoebus Apollo, supra, the facts, shortly stated, were that three policemen
had obtained information as to where stolen money had been hidden; they
travelled
there in an official police vehicle, identified themselves as police
officers to the father of the robbers and showed him their certificates
of
appointment. They then attached and stole the money. This court held the
appellant not to be vicariously liable. In doing
so it affirmed and applied the
standard test as set out above. The appellant appealed to the Constitutional
Court. The decision of
that court is reported: Phoebus Apollo Aviation CC v
Minister of Safety and Security 2003 (2) SA 34 (CC). It appears from the
judgment of Kriegler J that leave to appeal had been granted on the strength of
a contention
similar to the one advanced in this court, namely that because the
case involved an infringement of the appellant’s rights
under the
Constitution there was a case for ‘developing the law relating to the
vicarious liability of the State for delicts
committed by police
officers’. In that case the right in question related to the right to be
protected in one’s property.
Nonetheless, much of the reasoning of the
court in dismissing the appeal is of equal application to a case such as the
present. The
court considered first an argument based on Carmichele v
Minister of Safety and Security and another 2001 (4) SA 938 (CC) and
observed that the case was not analogous as it dealt with the issue of
wrongfulness. The same is true of
a similar argument advanced in this court. In
passing I should mention that cases such as Minister of Safety and Security v
Van Duivenboden 2002 (6) SA 431 (SCA) and Van Eeden v Minister of Safety
and Security 2003 (1) SA 389 (SCA) likewise dealt with the issue of
wrongfulness and accordingly are of no assistance in resolving the issue of
vicarious liability. In answer to a further contention Kriegler J said (at para
6):
‘It was also contended in argument that the respondent should be
held liable for the wrongful acts of the policemen whether
they were acting in
the course of their employment or not. No convincing argument was, however,
advanced to sustain this submission,
or to show why the common law should be
developed so as to impose an absolute liability on the State for the conduct of
its employees
committed dishonestly and in pursuit of their own selfish
interest.’
Finally the learned judge observed (at para 9):
‘It
is not suggested that in determining the question of vicarious liability the SCA
applied any principle which is inconsistent
with the Constitution. Nor is there
any suggestion that any such principle needs to be adapted or evolved to bring
it into harmony
with the spirit, purport or objects of the Bill of Rights. On
the contrary, counsel for the appellant expressly conceded that the
common-law
test for vicarious liability, as it stands, is consistent with the Constitution.
It has long been accepted that the application
of this test to the facts of a
particular case is not a question of law but one of fact, pure and
simple.’
It follows that in my view the ‘constitutional’
point raised by counsel is similarly without merit.
[9] The appeal is
accordingly dismissed with costs.
[10] I would add just this: I have the
deepest sympathy for the appellant, as I do for the thousands of women who are
raped every
year in this country. Ideally, they should all receive compensation,
but that is something for the Legislature and beyond the jurisdiction
of this
court.
D G SCOTT
JUDGE OF
APPEAL
CONCUR:
MTHIYANE JA
VAN HEERDEN JA
COMRIE
AJA
AR ERASMUS AJA
[11] I have had the
privilege of reading the judgment of my colleague Scott. I respectfully agree
with his findings and the reasons
therefor. I would, however, comment on the
contentions of counsel for the appellant on the question of the
respondent’s liability
for breach of a legal duty by members of the South
African Police Service (‘SAPS’).
[12] Counsel submits that on the
night in question, a legal duty came into existence in terms whereof the SAPS
was required to protect
the appellant from harm. The duty, so he contends,
extended to all members of the SAPS in general and to the three policemen in
particular.
Counsel's contention focuses on the fact of the breach of that duty
rather than on the act constituting the breach.
[13] It is
well settled that the wrongful and negligent breach of a legal duty by a
policeman acting within the course and scope of his
duty attracts liability for
the State for damage resulting from the breach. See: the Carmichele
series of cases;[1] Van Eeden vs
Minister of Safety and Security (Women's Legal Centre Trust, as
Amicus Curiae) 2003 (1) SA 389 (SCA). In Van Eeden a
policeman had negligently allowed a dangerous serial rapist to escape from
custody. The escapee thereafter sexually assaulted the
claimant. Vicarious
liability, negligence and quantum were conceded. This court held the State
liable for the damages arising from
the assault. The court found that the
policeman had acted in breach of a legal duty which existed in the particular
circumstances
of the matter. The present matter differs from the
situation in that case in that the acts of the three policemen, which
constituted the breach,
amounted to intentional criminal conduct falling
outside the ambit of their employment. (I refer to the three policemen as the
second, third and fourth defendants.)
[14] I accept for purposes of this
judgment that the three defendants owed the appellant more than a general duty
of care. I, further,
accept that in the particular circumstances obtaining at
the time, considerations of reasonableness (the legal convictions of the
community and legal policy, as subsumed by constitutional values) placed a legal
duty upon fourth defendant[2] to
protect appellant (Minister van Polisie v Ewels 1975 (3) SA 850 (A)).
That duty extended to the SAPS, and through it to all its other members, in
particular the second and third
defendants. Relevant in that regard were the
circumstances in which the appellant, a young woman, found herself that night;
the nature
of the duties that the three defendants were performing; and the fact
that they had the means, the time and the necessary (implied)
authority to assume that legal duty. Due regard must be had to the
appellant’s fundamental rights under the
Constitution,[3] as well as the
dictates of the Constitution in regard to the
SAPS.[4] The content of the duty was
clear and specific: (a) that the fourth defendant would transport appellant from
the garage shop in
Westonaria to her home in Randfontein, and (b) that the three
policemen would protect her from physical and psychological harm from
the time
of their departure until their arrival at her home. In acting in compliance with
that duty, second, third and fourth defendants
would act in their capacity and
within the scope of their employment as members of the SAPS.
[15] The legal
duty subsisted even while the defendants were raping the appellant. In fact, in
those terrible moments the duty was
immediate and compelling. A policeman cannot
unilaterally divest himself of his legal duty, therefore – so the argument
for
appellant runs – the breach of the duty occurred in the course and
scope of the defendants’ employment, and accordingly
the State was
vicariously liable for the consequences of the breach irrespective of the mode
or manner in which it occurred. This
contention finds support in Hirsch
Appliance Specialists v Shield Security Natal (Pty) Ltd 1992 (3) SA 643 (D).
The court held a security company vicariously liable for thefts committed by
its security guards while guarding
the plaintiff’s business premises.
Booysen J, after reviewing South African and English authorities, concluded as
follows (651H-652A):
'It seems to me that, when considering the liability of
an employer for intentional wrongdoing of the servant for his own benefit,
it is
important to distinguish between those instances in which the principal is
simply under a duty not to cause injury to another
and those instances in which
the principal is in addition under a duty to prevent third parties from causing
injury to that person.
Where an employer is, unlike an ordinary citizen, indeed
under a legal duty to be his brother’s keeper or the guardian or custodian
of his brother’s goods, and he entrusts that function to a servant who
then not only omits to perform his duty, but causes
the very injury which it is
his and his master’s duty to prevent, then, as a general rule, the master
will be held liable.
It is this feature, that it is the legal duty of the master
to prevent harm by third parties, which distinguishes the State’s
liability for the wrongdoing of policemen, on the one hand, from its liability
for wrongdoing of other civil servants and that of
an ordinary employer for the
wrongdoing of his servants on the other.
The basis of this liability is, with
respect, not so much the risk created by policemen but the nature of the duty
assumed by the
State.'
The following criticism of this decision by Mervyn
Dendy 1992 Annual Survey of South African Law at 484/5 is, with respect,
well founded and effectively puts paid to counsel’s
contention:
‘With respect, it is not convincing to say, as Booysen J
did, that the theft of the guards amounted to “mismanagement
in the
performance of their work”, for their act in stealing the
plaintiff’s property constituted, not the performance
of their work, but
the very antithesis of it: a person cannot be said to be engaged in furthering a
particular purpose (here, the
safeguarding of property against theft) when he
performs acts in deliberate frustration of the purpose. The truth was surely
that
when they stole, the guards had abandoned their employment and embarked on
a felonious frolic of their own, which took their conduct
beyond the ambit of
their employment (see 1991 Annual Survey
425[5]).’
The learned author,
further, expressed the view (p 485) that -
‘... vicarious liability for
intentional wrongdoing must surely be limited in the same way as in the case of
negligent conduct
on the part of a servant: by applying the settled principle
that the servant must have been acting within the course and scope of
his
employment. Intentional wrong-doing would then entail vicarious liability if it
was done in furtherance of the employer’s
business, but not if, as in
Hirsch, the delict was perpetrated in frustration of the employer’s
purpose.’
[16] The vicarious liability of an employer arises from the
unlawful actions of its employee. If those actions take the employee out
of the course and scope of his employment, then liability for the
employer
cannot arise. That is the case in the present matter in regard to the liability
of the first defendant for the criminal
acts of second, third and fourth
defendants. I must accordingly find, on the law as it stands, that
appellant’s claim was correctly dismissed in the court a
quo.
[17] In the result, I would dismiss the appeal with costs.
________________
AR ERASMUS
ACTING JUDGE OF APPEAL
[1] Carmichele v Minister of
Safety and Security and another 2001 (1) SA 489 (SCA); Carmichele v
Minister of Safety and Security and another (Centre for Applied Legal Studies
Intervening) 2001 (4) SA 938 (CC); Carmichele v Minister of Safety and
Security and another 2003 (2) SA 656 (C); The Minister of Safety and
Security and another v Carmichele 2004 (3) SA 305
(SCA).
[2] Fourth defendant is
the one who offered the appellant the lift: see para [2]
above.
[3] The right to freedom and
security of the person (S 12(1)(c) and 12(2)(b)); the right to human dignity
(s 10).
[4] The Constitution:
s 198, s 205, s 206; The South African Police Service Act 68 of 1995:
Preamble, s 13.
[5] This reference
is to the discussion by the author of Fawcett Security Operations (Pvt) Ltd
vs Oman Enterprises (Pvt) Ltd 1991 (2) SA 441 (ZH), where it was held
that a theft by a security guard could be regarded as a mode - albeit an
improper one - of doing what was authorised
by his employer. This decision
would appear not to accord with our law and was reversed on appeal (1992 (4) SA
425 (ZSC).
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