THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case no: 456/03
In the matter between:
NATASHA KERN
Appellant
and
THE MINISTER OF SAFETY AND SECURITY
Respondent
_____________________________________________________
Coram
:
Scott,  Mthiyane,  Van Heerden JJA,
Erasmus et Comrie AJJA
Date of Hearing :         2 September 2004
Date of delivery :         11 November 2004
Summary:
Policemen guilty of rape – whether rape committed in the
course and scope of their employment so as to render the respondent
vicariously liable – order in para 9
____________________________________________________
JUDGMENT
_____________________________________________________
SCOTT JA/…

SCOTT JA:
[1] The appellant, a young woman in her early twenties, was
raped by three policemen in the early hours of 27 March 1999 in
circumstances described more fully below. She sued the
respondent and the three policemen for damages in the
Johannesburg High Court but subsequently abandoned her claim
against the policemen, each of whom was sentenced to life
imprisonment for rape and 10 years’ imprisonment for kidnapping.
The sole question in issue in the court below was whether the
respondent was vicariously liable for the conduct of the rapists.
The parties agreed upon a statement of facts and no evidence was
led at the trial. Flemming DJP ordered absolution from the instance
but granted leave to appeal to this court.
[2] The facts are shortly these. The appellant and her male
companion had a disagreement at a place of entertainment in
Westonaria and  he  refused to take her home.  It  was  then  about
3 am on 27 March 1999. She went to a nearby all-night shop at a
petrol station to telephone her mother to ask the latter to come and
fetch her. The person on duty at the shop explained that the
telephone could take incoming calls only. In the meantime, a police

vehicle pulled into the petrol station. The occupants were the three
policemen. They were all in uniform and all enjoyed the rank of
sergeant. The one entered the shop and, on overhearing the
appellant’s request to use the telephone, offered to give the
appellant a lift home. She accepted, climbed into the car and sat in
the back. The vehicle drove off in the direction of the appellant’s
house. The appellant did not talk to the policemen but at some
stage they began speaking to each other in an African language
which she did not understand. Thereafter she dozed off but awoke
when the vehicle slowed down at a stop street. Instead of
proceeding in the direction of her house the driver executed a turn
to the left. She remonstrated with him and told him that they were
on the wrong road. She was immediately told to keep quiet and
one of the others threw a police jacket over her head and held her
down. She resisted with fortitude, kicking and screaming, but to no
avail. The jacket over her head was pulled tight and she was
struck a hard blow to the stomach. The vehicle stopped and she
bravely continued to struggle. She felt a knife at her throat and was
told to keep quiet or she would be killed. Despite her resistance
she was overpowered and forcibly raped by each of the policemen
in turn. When they had finished they drove off leaving her to find
her own way home.

[3] As previously indicated, the sole basis on which it was
sought, both on the pleadings and in argument, to recover
damages from the respondent was that he was vicariously liable
for the conduct of the rapists. The conduct relied upon was (a) the
actual rape of the appellant by each of the three policemen and (b)
the failure of each to intervene when one or other of their co-
rapists was raping the appellant.
[4] The legal principles underlying vicarious responsibility are
well-established. An employer, whether a minister of State or
otherwise, will be vicariously liable for the delict of an employee if
the delict is committed by the employee in the course and scope of
his or her employment.  Difficulty frequently arises in the
application of the rule, particularly in so-called ‘deviation’ cases.
But the test, commonly referred to as the ‘standard test’, has been
repeatedly applied by this court. Where there is a deviation the
inquiry, in short, is whether the deviation was of such a degree that
it can  be said that in doing what he or she did the employee was
still exercising the functions to which he or she was appointed or
was still carrying out some instruction of his or her employer. If the
answer is yes, the employer will be liable no matter how badly or
dishonestly or negligently those functions or instructions were
being exercised by the employee. (See eg Feldman (Pty) Ltd v

Mall 1945 AD 733 at 774; Viljoen v Smith 1997 (1) SA 309 (A)
315D-317A; Minister of Safety and Security Services v Jordaan t/a
Andre Jordaan Transport  2000 (4) SA 21 (SCA) para 5 and more
recently Minister van Veiligheid en Sekuriteit v Japmoco BK h/a
Status Motors 2002 (5) SA 649 (SCA) paras 11-16 and Minister
van Veiligheid en Sekuriteit v Phoebus Appollo Aviation BK 2002
(5) SA 475 (SCA) paras 8-18.) Notwithstanding the difficult
questions of fact that frequently arise in the application of the test,
it has been recognised by this court as serving to maintain a
balance between imputing liability without fault (which runs counter
to general legal principles) and the need to make amends to an
injured person who might otherwise not be recompensed. From
the innocent employer’s point of view, the greater the deviation the
less justification there can be for holding him or her liable.
[5] As far as the actual rape of the appellant is concerned, it was
ultimately conceded by counsel for the appellant that if the test
outlined above were to be applied, there would be no vicarious
liability on the part of the respondent. The concession was well
made. No doubt a rape which is shown to have been committed to
intimidate for the purpose of illiciting information in solving a crime
could possibly result in the respondent being held vicariously
liable, but nothing like that occurred in the present case. By the

very nature of the crime, the circumstances in which a policeman
could commit rape in the course and scope of his employment
must be extremely rare. In the present case, everything points to
the three policemen being motivated by nothing more than self-
gratification. Acting in concert, they deviated from their functions
and duties as policemen to such a degree that it cannot be said
that in committing the crime of rape they were in any way
exercising those functions or performing those duties.
[6] Counsel submitted, however, that a different test should be
applied. He contended that once it was shown that the policemen
were on duty when they gave the appellant a lift and that in
offering to take her home safely they were acting within the course
of their duties as policemen to prevent crime, then by the very act
of deviating from those duties they rendered the respondent
vicariously liable. In other words, it was the deviation itself that
rendered the respondent liable and the degree of the deviation
was wholly irrelevant. This is not the law and never has been; nor
was counsel able to refer to any authority in support of such a
novel proposition. In my view it is without merit.
[7] The further argument advanced on behalf of the appellant
was that each policeman was under a continuing duty to prevent
the commission of crime and that therefore while one was raping

the appellant the other two remained under a duty to intervene.
Accordingly, so the argument went, the respondent was vicariously
liable by reason of the failure on the part of the other two to
intervene. Counsel sought to rely on Minister van Polisie v Ewels
1975 (3) SA 590 (A). The reliance was misplaced. The issue in
that case was whether the failure on the part of a number of
policemen to intervene when another, one Barnard, assaulted the
plaintiff was wrongful for the purpose of establishing Aquilian
liability. The matter was decided on exception and the decision
was predicated on the assumption that the policemen failing to
intervene were acting in the course and scope of their employment
with the Minister of Police (at 594F) while Barnard, also a
policeman, was not (595F). In the present case the element of
wrongfulness is not in issue. The conduct of all three policemen
was not only wrongful, it was criminal from the time they conspired
to rape the appellant until the time the attack ended. Indeed, the
inference is overwhelming that the three policemen formed a
common intention to rape the appellant at some stage before the
driver turned off the road leading to the appellant’s house and
drove to the spot where all three raped her. Each gave support to
the others in committing the crime. If only one had physically raped
the appellant, all three could nonetheless have been convicted of

rape. They were at all times acting in pursuance of a common
purpose. To suggest, therefore, that one would have been acting
in the course and scope of his employment while another
physically raped the appellant, would cease to so act when it was
‘his turn’, and then resume acting in the course and scope of his
employment while the third raped the appellant, borders on the
absurd.
[8] Yet a further argument that was raised is that the common
law must be developed so as to render the State vicariously liable
in a situation such as the present. How this could be done without
imposing absolute liability on the State was not spelt out; it was
simply left in the air. It is, however, unnecessary to consider the
question, which in any event would best be dealt with by the
legislature should a change in the law be considered necessary.
In the recent decision of this court in Minister van Veiligheid en
Sekuriteit v Phoebus Apollo, supra, the facts, shortly stated, were
that three policemen had obtained information as to where stolen
money had been hidden; they travelled there in an official police
vehicle, identified themselves as police officers to the father of the
robbers and showed him their certificates of appointment.
They then attached and stole the money. This court held the
appellant not to be vicariously liable. In doing so it affirmed and

applied the standard test as set out above. The appellant appealed
to the Constitutional Court. The decision of that court is reported:
Phoebus Apollo Aviation CC v Minister of Safety and Security
2003 (2) SA 34 (CC). It appears from the judgment of Kriegler J
that leave to appeal had been granted on the strength of a
contention similar to the one advanced in this court, namely that
because the case involved an infringement of the appellant’s rights
under the Constitution there was a case for ‘developing the law
relating to the vicarious liability of the State for delicts committed
by police officers’. In that case the right in question related to the
right to be protected in one’s property. Nonetheless, much of the
reasoning of the court in dismissing the appeal is of equal
application to a case such as the present. The court considered
first an argument based on Carmichele v Minister of Safety and
Security and another 2001 (4) SA 938 (CC) and observed that the
case was not analogous as it dealt with the issue of wrongfulness.
The same is true of a similar argument advanced in this court.  In
passing I should mention that cases such as Minister of Safety and
Security v Van Duivenboden 2002 (6) SA 431 (SCA) and Van
Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA)
likewise dealt with the issue of wrongfulness and accordingly are

of no assistance in resolving the issue of vicarious liability. In
answer to a further contention Kriegler J said (at para 6):
‘It was also contended in argument that the respondent should be held liable
for the wrongful acts of the policemen whether they were acting in the course
of their employment or not. No convincing argument was, however, advanced
to sustain this submission, or to show why the common law should be
developed so as to impose an absolute liability on the State for the conduct of
its employees committed dishonestly and in pursuit of their own selfish
interest.’
Finally the learned judge observed (at para 9):
‘It is not suggested that in determining the question of vicarious liability the
SCA applied any principle which is inconsistent with the Constitution. Nor is
there any suggestion that any such principle needs to be adapted or evolved
to bring it into harmony with the spirit, purport or objects of the Bill of Rights.
On the contrary, counsel for the appellant expressly conceded that the
common-law test for vicarious liability, as it stands, is consistent with the
Constitution. It has long been accepted that the application of this test to the
facts of a particular case is not a question of law but one of fact, pure and
simple.’
It follows that in my view the ‘constitutional’ point raised by counsel
is similarly without merit.
[9] The appeal is accordingly dismissed with costs.
[10] I would add just this: I have the deepest sympathy for the
appellant, as I do for the thousands of women who are raped every

year in this country. Ideally, they should all receive compensation,
but that is something for the Legislature and beyond the
jurisdiction of this court.
D G SCOTT
JUDGE OF APPEAL
CONCUR:
MTHIYANE
JA
VAN HEERDEN JA
COMRIE
AJA

AR ERASMUS  AJA
[11] I have had the privilege of reading the judgment of my
colleague Scott. I respectfully agree with his findings and the
reasons therefor. I would, however, comment on the contentions of
counsel for the appellant on the question of the respondent’s
liability for breach of a legal duty by members of the South African
Police Service (‘SAPS’).
[12] Counsel submits that on the night in question, a legal duty
came into existence in terms whereof the SAPS was required to
protect the appellant from harm. The duty, so he contends,
extended to all members of the SAPS in general and to the three
policemen in particular. Counsel's contention focuses on the fact of
the breach of that duty rather than on the act constituting the
breach.
[13] It is well settled that the wrongful and negligent breach of a
legal duty by a policeman acting within the course and scope of his
duty attracts liability for the State for damage resulting from the
breach.   See:  the Carmichele series of cases;1  Van Eeden vs
Minister of Safety and Security (Women's Legal Centre Trust, as

1 Carmichele v Minister of Safety and Security and another 2001 (1) SA 489 (SCA);
Carmichele v Minister of Safety and Security and another (Centre for Applied Legal Studies
Intervening) 2001 (4) SA 938 (CC); Carmichele v Minister of Safety and Security and another

Amicus Curiae) 2003 (1) SA 389 (SCA). In Van Eeden a
policeman had negligently allowed a dangerous serial rapist to
escape from custody. The escapee thereafter sexually assaulted
the claimant. Vicarious liability, negligence and quantum were
conceded. This court held the State liable for the damages arising
from the assault. The court found that the policeman had acted in
breach of a legal duty which existed in the particular circumstances
of the matter.   The present matter differs from the situation in that
case in that the acts of the three policemen, which constituted the
breach, amounted to intentional criminal conduct falling outside the
ambit of their employment.  (I refer to the three policemen as the
second, third and fourth defendants.)
[14] I accept for purposes of this judgment that the three
defendants owed the appellant more than a general duty of care.
I, further, accept that in the particular circumstances obtaining at
the time, considerations of reasonableness (the legal convictions
of the community and legal policy, as subsumed by constitutional
values) placed a legal duty upon fourth defendant2 to protect
appellant (Minister van Polisie v Ewels 1975 (3) SA 850 (A)). That
duty extended to the SAPS, and through it to all its other members,

2003 (2) SA 656 (C);  The Minister of Safety and Security and another v Carmichele 2004 (3)
SA 305 (SCA).
2   Fourth defendant is the one who offered the appellant the lift: see para [2] above.

in particular the second and third defendants. Relevant in that
regard were the circumstances in which the appellant, a young
woman, found herself that night; the nature of the duties that the
three defendants were performing; and the fact that they had the
means, the time and the necessary (implied) authority to assume
that legal duty. Due regard must be had to the appellant’s
fundamental rights under the Constitution,3 as well as the dictates
of the Constitution in regard to the SAPS.4
The content of the
duty was clear and specific: (a) that the fourth defendant would
transport appellant from the garage shop in Westonaria to her
home in Randfontein, and (b) that the three policemen would
protect her from physical and psychological harm from the time of
their departure until their arrival at her home. In acting in
compliance with that duty, second, third and fourth defendants
would act in their capacity and within the scope of their
employment as members of the SAPS.
[15] The legal duty subsisted even while the defendants were
raping the appellant. In fact, in those terrible moments the duty
was immediate and compelling. A policeman cannot unilaterally
divest himself of his legal duty, therefore – so the argument for

3 The right to freedom and security of the person (S 12(1)(c) and 12(2)(b));  the right to human
dignity (s 10).

appellant runs – the breach of the duty occurred in the course and
scope of the defendants’ employment, and accordingly the State
was vicariously liable for the consequences of the breach
irrespective of the mode or manner in which it occurred. This
contention finds support in Hirsch Appliance Specialists v Shield
Security Natal (Pty) Ltd 1992 (3) SA 643 (D). The court held  a
security company vicariously liable for thefts committed by its
security guards while guarding the plaintiff’s business premises.
Booysen J, after reviewing South African and English authorities,
concluded as follows (651H-652A):
'It seems to me that, when considering the liability of an employer for
intentional wrongdoing of the servant for his own benefit, it is important to
distinguish between those instances in which the principal is simply under a
duty not to cause injury to another and those instances in which the principal
is in addition under a duty to prevent third parties from causing injury to that
person. Where an employer is, unlike an ordinary citizen, indeed under a legal
duty to be his brother’s keeper or the guardian or custodian of his brother’s
goods, and he entrusts that function to a servant who then not only omits to
perform his duty, but causes the very injury which it is his and his master’s
duty to prevent, then, as a general rule, the master will be held liable. It is this
feature, that it is the legal duty of the master to prevent harm by third parties,
which distinguishes the State’s liability for the wrongdoing of policemen, on

4 The Constitution:  s 198, s 205, s 206;  The South African Police Service Act 68 of 1995:
Preamble, s 13.

the one hand, from its liability for wrongdoing of other civil servants and that of
an ordinary employer for the wrongdoing of his servants on the other.
The basis of this liability is, with respect, not so much the risk created by
policemen but the nature of the duty assumed by the State.'
The following criticism of this decision by Mervyn Dendy 1992
Annual Survey of South African Law at 484/5 is, with respect, well
founded and effectively puts paid to counsel’s contention:
‘With respect, it is not convincing to say, as Booysen J did, that the theft of the
guards amounted to “mismanagement in the performance of their work”, for
their act in stealing the plaintiff’s property constituted, not the performance of
their work, but the very antithesis of it: a person cannot be said to be engaged
in furthering a particular purpose (here, the safeguarding of property against
theft) when he performs acts in deliberate frustration of the purpose. The truth
was surely that when they stole, the guards had abandoned their employment
and embarked on a felonious frolic of their own, which took their conduct
beyond the ambit of their employment (see 1991 Annual Survey 4255).’
The learned author, further, expressed the view (p 485) that -
‘… vicarious liability for intentional wrongdoing must surely be limited in the
same way as in the case of negligent conduct on the part of a servant: by
applying the settled principle that the servant must have been acting within
the course and scope of his employment.  Intentional wrong-doing would then
entail vicarious liability if it was done in furtherance of the employer’s

5 This reference is to the discussion by the author of Fawcett Security Operations (Pvt) Ltd  vs
Oman Enterprises (Pvt) Ltd 1991 (2) SA 441 (ZH), where it was held that a theft by a security
guard could be regarded as a mode - albeit an improper one - of doing what was authorised

business, but not if, as in Hirsch, the delict was perpetrated in frustration of
the employer’s purpose.’
[16] The vicarious liability of an employer arises from the unlawful
actions of its employee.  If those actions take the employee out of
the course and scope of his employment, then liability for the
employer cannot arise. That is the case in the present matter in
regard to the liability of the first defendant for the criminal acts of
second, third and fourth defendants.   I must accordingly find, on
the law as it stands, that appellant’s claim was correctly dismissed
in the court a quo.
[17] In the result, I would dismiss the appeal with costs.
________________
AR ERASMUS
ACTING JUDGE OF APPEAL

by his employer.  This decision would appear not to accord with our law and was reversed on
appeal (1992 (4) SA 425 (ZSC).