Concourt mulls policeman's rape case

Can the minister of police be held vicariously liable for a criminal offence committed by a police officer who is on stand-by duty?

This question faced the Constitutional Court judges yesterday following a 1998 rape of a 13-year-old girl by a detective sergeant in George, Western Cape.

The detective, Allister van Wyk, was convicted and sentenced to 12 years in prison for the offence.

Now Minister of Police Nathi Mthethwa is facing a lawsuit at the Constitutional Court after the victim, now 26 years old, sought damages for the rape and assault she suffered at the hands of the officer.

Mthethwa's advocate, Renata Williams, SC, yesterday argued that Van Wyk was not on duty when he assaulted and raped the girl and that the minister could not be held liable for damages under these circumstances.

The woman's defence counsel, advocate Louis Olivier, SC, argued that without the use of a police vehicle, Van Wyk would not have been able to rape the teen.

According to court records the victim had gone to a nightclub with friends, but after a fallout with them she accepted a lift home from Van Wyk, who was visiting the nightclub with two friends.

Van Wyk was dressed in civilian clothing and had been using an unmarked police vehicle.

After dropping off his friends, Van Wyk drove off and later restrained, assaulted and raped the girl.

Soon after Van Wyk's conviction the victim instituted action against the minister in the Western Cape High Court.

The minister was held liable but appealed to the Supreme Court of Appeal.

That court found in the minister's favour on the ground that the police officer was off-duty when he attacked the victim.

It also held that the legal obligations of an on-duty police officer did not extend to a police officer who is on stand-by, or off-duty.

Advocate Olivier said "policemen are upholders of the law, and that is constitutional".

"The question that should be answered is whether a girl who was brutally assaulted and raped by a detective of the law has a claim against the minister who appointed such a detective, or should she be left with the cold comfort of suing a criminal who is unable to pay her?"

But Williams, for the minister, argued that Van Wyk was not on duty and that the minister could not be held liable for damages under these circumstances.

"Van Wyk should have remained at home, sober, so that when the employer calls him he should be ready for duty.

"He never put himself on duty," she said.

"Here, he was completely divorced from his duties with one evil aim, to rape," she said, adding that policemen were "not on duty 24 hours a day".

Judgment has been reserved.