FRONEMAN J
[143] Mr van Wyk was in the position to offer the applicant a lift that night by virtue
of his access to police resources, particularly the possession of a police vehicle. That
occurred because of his status as a detective and the fact that he was on standby
duty.76
[144] All these factors are relevant in objectively assessing whether there was a legal
duty, arising from general and particular state obligations, to protect those who place
their trust in the police (especially vulnerable children and women). The fact that Mr
van Wyk did not consider himself to be on duty, and that he intentionally disregarded
any possible obligation not to cause harm negligently to the applicant, makes matters
worse, not better.
[145] In Gore,77 Cameron JA and Brand JA examined the relevance of state of mind
in the determination of wrongfulness:
―We do not think that it can be stated as a general rule that, in the context of delictual
liability, state of mind has nothing to do with wrongfulness. . . .
In the language of the more recent formulations of the criterion for wrongfulness: in
cases of pure economic loss the question will always be whether considerations of
public or legal policy dictate that delictual liability should be extended to loss
resulting from the conduct at issue. Thus understood, it is hard to think of any reason
why the fact, that the loss was caused by dishonest (as opposed to bona fide
negligent) conduct, should be ignored in deciding the question. We do not say that
76
The High Court noted that Mr van Wyk confirmed during his testimony that ―the unmarked vehicle had been
allocated to him for the purpose of fulfilling his stand-by duties.‖ F v Minister of Safety and Security and
Another 2010 (1) 606 (WCC) SA at para 15.
77
See above n 46.
58
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