YACOOB J
doing there. She did not believe him. Above all, he gave Ms F no direct assurance
that he was a policeman and that he would take her home.
[171] An important factor relevant to this question is the vulnerability of potential
victims to the wrongful exercise of power or breach of trust that might occur in a
particular case.16 On the night of the assault and rape Ms F was vulnerable in two
ways: she was a female child of 13 years.
These characteristics rendered her
vulnerable to the threat of sexual violence and sexual violence itself, including rape.
As this Court rightly accepted in Carmichele,17 and reaffirmed in K:18
―Sexual violence and the threat of sexual violence goes to the core of women‘s
subordination in society. It is the single greatest threat to the self-determination of
South African women.‖
[172] This threat of intense violation is only aggravated by Ms F‘s tender years. In
the application of the K test, courts are mandated to approach the objective evaluation
of the sufficiency of the link with ―explicit recognition‖ of its ―normative content‖ and
―with the spirit, purport and objects of the Constitution in mind‖.19 I have no doubt
that this Court is required to consider as a factor the relative vulnerability of Ms F to
sexual violence, the more so because the wrongdoer is a policeman. The more
vulnerable a person, the greater the need for that person to rely on police protection
and trustworthiness. The question in this case therefore is whether in the light of her
16
Bazley above n 4 at para 41 as quoted in K above n 2 at para 38.
17
Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening)
[2001] ZACC 22; 2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC) at para 62.
18
Above n 2 at para 18.
19
Id at para 44.
71
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