O’REGAN J
values of our community. The concession, therefore, while rightly made, highlights
the untenable nature of the respondent’s argument.
[57]
These factors mentioned by counsel for the respondent do not avoid the
conclusion that there was a close connection between the wrongful conduct of the
policemen and the nature of their employment. In sum, the opportunity to commit the
crime would not have arisen but for the trust the applicant placed in them because they
were policemen, a trust which harmonises with the constitutional mandate of the
police and the need to ensure that mandate is successfully fulfilled.
When the
policemen – on duty and in uniform – raped the applicant, they were simultaneously
failing to perform their duties to protect the applicant. In committing the crime, the
policemen not only did not protect the applicant, they infringed her rights to dignity
and security of the person. In so doing, their employer’s obligation (and theirs) to
prevent crime was not met. There is an intimate connection between the delict
committed by the policemen and the purposes of their employer.
This close
connection renders the respondent liable vicariously to the applicant for the wrongful
conduct of the policemen.
[58]
In the light of the conclusion to which I have come, namely that the respondent
is vicariously liable for the conduct of the policemen, it is not necessary to consider
the argument made by the applicant that the respondent was directly liable in delict to
the applicant.
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