amicus curiae - Institute for Security Studies - vicarious liability - Constitutional Court
The applicant in this case, F, was raped by a police detective, Allister Van Wyk, while he was on stand-by duty when she was 13 years old. She now seeks to hold the Minister of Safety and Security vicariously liable, in delict, for the assault. The SCA held that (by a 3 to 2 majority) the Minister was not vicariously liable, substantially because van Wyk was not on active duty at the time the assault was committed.
The Institute for Security Studies (ISS), represented by the SERI Law Clinic, has been admitted as first amicus curiae in the matter. The submission of the ISS argues that whether the police officer was on duty, off duty or on stand-by duty at the time of the attack, the test is whether there is a sufficiently close link between the business and purposes of the Minister and the rape committed. Key to this enquiry is the risk created by the government's employment of van Wyk and the fact that the government equipped van Wyk with the tools and the position of trust which advanced his commission of the rape. Also relevant to the enquiry is the fact that levels of police brutality in South Africa are steadily increasing and that command and control mechanisms within the police force are inadequate to ensure that police officers do not abuse their authority (whether apparent or real).
The appeal was heard in the Constitutional Court on 4 August 2011. On 15 December 2011, judgment was handed down, with one majority and two minority judgments written. The Court reversed the SCA decision and held that the Minister was vicariously liable for the damages suffered by F.