YACOOB J
person who commits the delict is on or off duty, though not decisive, is important. A
court should not lightly hold the employer vicariously liable for the conduct of an offduty police officer. In that event, the other factors must, in my view, be sufficiently
strong to make up for the absence of the duty element.
[165] An example will perhaps illustrate the point. Take the case where vicarious
liability is asserted arising from the conduct of a mechanic employed by the police
service who, on a jaunt of his own, arrested someone while he was off duty and not in
uniform. Assume also that he claimed to be a policeman, hauled the victim to a police
station, made a docket, wrongfully and unlawfully charged him with attempted
housebreaking and locked him up.14
There is a much greater possibility of the
required link being established in a case of this kind in our constitutional order than in
the case with which we are here concerned. The same would apply if the mechanic
raped the victim at the police station.
[166] Mr van Wyk was not on duty at the time he committed the rape. The facts in
this case must be carefully considered to ascertain whether a sufficient link had been
shown.
[167] It is true that Mr van Wyk drove a police car, there were dockets in the car, and
he said that he claimed to be a private detective. These three factors go some way
towards establishing some kind of link. But whether the link is sufficient must be
14
These facts are taken from the case of Minister of Police v Rabie above n 3.
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