MOGOENG J
[56] The threat of sexual violence to women is indeed as pernicious as sexual
violence itself. It is said to go to the very core of the subordination of women in
society.40 It entrenches patriarchy as it imperils the freedom and self determination of
women. It is deeply sad and unacceptable that few of our women or girls dare to
venture into public spaces alone, especially when it is dark and deserted. If official
crime statistics are anything to go by, incidents of sexual violence against women
occur with alarming regularity.41 This is so despite the fact that our Constitution,
national legislation, formations of civil society and communities across our country
have all set their faces firmly against this horrendous invasion and indignity imposed
on our women and girl-children.
[57] It follows without more that the state, through its foremost agency against
crime, the police service, bears the primary responsibility to protect women and
children against this prevalent plague of violent crimes. Courts, too, are bound by the
Bill of Rights. When they perform their functions, it is their duty to ensure that the
fundamental rights of women and girl-children in particular are not made hollow by
actual or threatened sexual violence. They must acknowledge the policy-drenched
nature of the common law rules of vicarious liability, that it is the courts that have in
the past fashioned and favoured them, and that now the rules must be applied through
the prism of constitutional norms.
40
Carmichele at [37] above, also referred to in K above n 8 at para 18.
41
The South African Police Service, Crime Report 2010/2011 (September 2011) http://www.saps.gov.za/
statistics/reports/crimestats/2011/crime_situation_sa.pdf, accessed on 5 December 2011.
22
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