By Alameen Templeton
Constitutional Court Justice Kate O'Regan, hearing argument that it was not the duty of police to protect women in distress, sank her head into her hands in exasperation.
She had just snapped at advocate Piet Louw SC: "You are lacking any sense of what it is like being a woman in a society, (where you are) under a constant threat of rape or assault."
Louw was arguing on Tuesday that the minister of safety and security could not be held liable for the rape of a young woman by three uniformed, on-duty police sergeants in 1999.
| 'You are trivialising this to say it was a contract for transport' |
The victim, Ms K (who may not be identified), had been abandoned by her boyfriend at a club in Westonaria and had gone to a garage to phone her mother for a lift home at about 4am.
As she pleaded with a station attendant to be allowed to use the telephone, one of the sergeants entered and offered to give her a lift.
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Instead of taking her to safety, he and two colleagues beat her up and each raped her at knifepoint before abandoning her in a stretch of veld.
To the growing incredulity of the justices on Tuesday, Louw stated that:
Ms K had not been in distress when she entered the petrol station - he argued that it was almost light at the time.
Ms K had walked away from an earlier agreement that her boyfriend would take her home.
She had climbed willingly into the squad car.
Ms K's advocate, Wim Trengove SC, had earlier argued that the Supreme Court of Appeal (SCA) had erred in not giving sufficient weight to the police's constitutional duty to protect vulnerable women - a duty repeatedly emphasised by the Constitutional Court.
Bearing this in mind, the court had no option but to set aside the SCA decision and to make a finding that the police were acting in their official capacity. As such, the minister was liable, he said.
One of the prime motivations for Ms K accepting the sergeant's offer arose from the fact that he was a police officer in a position of trust, he said.
But Louw argued that the police would have had a duty of care only if Ms K had been under arrest.
This prompted Justice Dikgang Moseneke to ask if the public would find it acceptable that police had a duty of care to arrested people suspected of crimes, but not to ordinary, law-abiding citizens.
The sergeants were not acting in their official capacity, but had merely entered into an agreement to transport Ms K, Louw said, adding he was not seeking to "trivialise" Ms K's ordeal. Justice Zac Yacoob immediately shot back: "You are trivialising this to say it was a contract for transport. It was nothing like that."
But Louw stuck to his guns and ground his way through his legal argument - which was approved of by the SCA in November - that rape fell outside the sergeants' scope of employment and the minister could consequently not be held vicariously liable for their conduct.
His argument did not go down well with the justices. When Louw insisted on sticking to his argument, Justice O'Regan said for a second time that he had no understanding of the plight of women.
Initially, Justice O'Regan sat with her hands clasped over her nose and mouth. Soon her head was sunk completely in her opened hands.
Then she clasped her fingers and her knuckles whitened as a deep furrow sank between her brows before she made her second criticism of Louw.
As Louw continued arguing that the "facts" gave no indication that Ms K had been in distress, Justice Yvonne Mokgoro said: "You seem to be in denial of the social context of the facts in which they occurred and, worse, you seem to be in denial of the constitutional issues that are at stake."
Trengove asked the court to send the case back to the High Court to determine the damages owed to Ms K, if the judges found in his client's favour.
The court reserved its decision.
- This article was originally published on page 3 of The Star on May 11, 2005
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