MOGOENG J
their constitutional rights. In grappling with the question of the state‘s vicarious
liability, the constitutional obligations to prevent crime and to protect members of the
public, particularly the vulnerable, must enjoy some prominence. These obligations,
as well as the constitutional rights of Ms F, are the prism through which this enquiry
should be conducted.
[54] Ms F has a constitutional right to freedom and security of the person, provided
for in section 12(1) of the Constitution.38 She also has the constitutional right to have
her inherent dignity respected and protected.39 This, and the right to freedom and
security of the person, are implicated by the assault and rape which were perpetrated
against her person.
[55] Many men of our society, not unlike the policeman who raped Ms F, continue
to force themselves on women and on girl-children. Often, with impunity, men
forcibly violate women‘s bodies, privacy, dignity and self-worth, freedom, and the
right to be treated with equal regard. In short, rape of women and children violates a
cluster of interlinked fundamental rights treasured by our Constitution.
38
Section 12 provides:
―(1) Everyone has the right to freedom and security of the person, which includes the right—
39
(a)
not to be deprived of freedom arbitrarily or without just cause;
(b)
not to be detained without trial;
(c)
to be free from all forms of violence from either public or private sources;
(d)
not to be tortured in any way; and
(e)
not to be treated or punished in a cruel, inhuman or degrading way.‖
Section 10 of the Constitution.
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