Constitutional Court To Decide On Minister's Liability For Police Violence

ISS Press Release 

4 August 2011

Minister should be held liable for employing rogue police officers, Court told

The Institute for Security Studies (ISS), represented by the Socio-Economic Rights Institute of SA (SERI) Law Clinic, has been admitted as a friend of the court in the case of HRF v Minister of Safety and Security. The case is to be heard by the Constitutional Court on Thursday, 4 August 2011.

In the early morning of 15 October 1998, a 13-year old girl (known as “HRF”) was assaulted and raped by Detective Sergeant van Wyk, a police officer stationed at George. Van Wyk used an unmarked police vehicle to entice the girl into accepting a lift from him. She did so because she knew he was a police officer. Van Wyk took her to a remote area near Kraaimans and then assaulted and raped her. It later emerged that Van Wyk had been employed and promoted to the rank of Detective Sergeant despite having four previous criminal convictions, three of which involved violence.

HRF subsequently sued the police detective and the Minister of Safety and Security for damages. The Cape High Court held the Minister vicariously liable for Van Wyk’s conduct. The Supreme Court of Appeal (SCA), however, reversed the decision and held that the Minister was not liable for HRF’s rape and assault, substantially because Van Wyk had been on stand-by duty at the time. HRF has now appealed to the Constitutional Court against the SCA’s decision.

The ISS submits that the continued employment of van Wyk in the South African Police Service (SAPS) created a substantial risk that he would abuse his position as a Detective Sergeant in order to commit violent crime. Holding the government accountable for the risk it created will encourage steps to be taken to ensure greater control over the recruitment, training and supervision of police officers. The ISS will also introduce evidence from the Independent Complaints Directorate (ICD) demonstrating the alarming increase in police violence in the 13 years prior to 2010, and evidence of shortcomings in detective training as well as command and control mechanisms within the SAPS.

According to Gareth Newham, Head of the Crime and Justice Programme at the ISS, “Police officers are given wide-ranging powers to protect the public. When the conditions under which these powers can be abused are not adequately addressed, it is important that the government is held accountable. In this case, a police officer with a history of violence was not removed from the SAPS but rather continued to be given police powers and resources thereby placing the community at risk. He was given access to the police vehicle that enabled him to assault and rape a young girl. The government should be held accountable for its failure to establish appropriate controls to prevent this from happening.”

Jackie Dugard, SERI’s Executive Director said: “Police violence is on the increase. The permissive, inadequately regulated environment allowed by the Minister and the National Police Commissioner enables many police officers to abuse their authority. It inevitably leads to the kind of unacceptable violence which occurred in this case. We believe the Court should use this case to require a higher standard of accountability and control within the police service. This will ensure that the police enhance, rather than reduce, the safety of ordinary South Africans.”

Read more on the case and the ISS submission here.

Contact:

Gareth Newham: Head, Crime and Justice Programme at ISS: [email protected] / 082 887 1557

Jackie Dugard: Executive Director at SERI: [email protected] / 084 240 6187