MOGOENG J
The establishment of this connection must be assessed by explicit recognition of the
normative factors that point to vicarious liability including the constitutional mandate
of the state, to establish a credible and efficient police service on which the public
ought to be able to rely for protection from, and prevention of, crime. That should be
a police service worthy of the trust of the public and one to which vulnerable members
of the public ought to turn readily for protection in times of need.
[77] This position was articulated in K as follows:
―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.‖52
[78] In keeping with an apparent appreciation of the police service‘s obligation to
protect her, Ms F looked to Mr van Wyk for protection. She did so as a result of his
employment as a policeman, which placed him in a position of trust. It is this trust
that is necessary for the fulfilment of the police service‘s constitutional mandate.
Sadly, he betrayed the trust she reposed in him, by raping her. She was very young,
stranded in the middle of nowhere at night, and very vulnerable when Mr van Wyk
abused her trust by taking advantage of her helplessness.
52
Id at para 57.
30
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