FRONEMAN J applicant had requested a lift from Mr van Wyk and that this was a function and duty of members of the police; that the applicant had witnessed police dossiers in the vehicle used by Mr van Wyk; and that the Constitution created a duty to prevent, combat and investigate crime and to protect the citizens of South Africa. [131] The salient facts upon which the matter must be decided are set out in the majority judgment in the Supreme Court of Appeal and in the main judgment of this Court. It is not necessary to repeat them here. Wrongfulness – a legal duty on Mr van Wyk and the Minister? [132] The determination of wrongfulness involves questions of fact and law. The applicant needs to prove the facts upon which she relies for giving rise to the existence of a legal duty towards her on the part of Mr van Wyk and the Minister. 67 Whether those facts give rise to a legal duty is a question of law that is determined with reference to considerations of public and legal policy, consistent with constitutional norms.68 [133] For direct state liability to exist the legal duty must be a public one. In this case that translates into a public duty that must primarily have rested on Mr van Wyk. I will return to this aspect later. Before doing so, however, I need to state why I do not consider that either the particular or general ‗creation of risk‘ arguments advanced on 67 Compare Two Oceans above n 36 at para 9. 68 See above n 46. 54