Natasha Kern v The Minister of Safety and Security

In the early hours of 27 March 1999, the appellant, a young woman in her early twenties, was at a petrol station in Westonaria after a disagreement with her companion left her stranded. Three uniformed police sergeants in a police vehicle offered her a lift home, which she accepted. After she dozed off, instead of proceeding to her home, they turned off the correct route. When she objected, they covered her head with a police jacket, held her down, threatened her with a knife, and each of them raped her in turn despite her resistance. They then left her to find her own way home. All three policemen were convicted and sentenced to life imprisonment for rape and 10 years for kidnapping. The appellant sued the Minister and the three policemen for damages but abandoned her claim against the policemen. The sole issue was whether the Minister was vicariously liable for the conduct of the rapists.

• Whether the Minister of Safety and Security was vicariously liable for the rape committed by three on-duty police officers
• Whether the rape was committed in the course and scope of the policemen's employment
• Whether a different test for vicarious liability should apply when police officers deviate from their duties
• Whether the failure of the other policemen to intervene while one was raping the appellant attracted vicarious liability
• Whether the common law on vicarious liability should be developed in light of constitutional rights

The appeal was dismissed with costs. The order of absolution from the instance granted by Flemming DJP in the Johannesburg High Court was upheld.

An employer (including the State) is not vicariously liable for intentional criminal conduct of employees that constitutes such a substantial deviation from their employment duties that they can no longer be said to be exercising their employment functions. Where police officers, motivated by self-gratification rather than any policing purpose, conspire to and commit rape while on duty, they act outside the course and scope of their employment, regardless of the fact that they were on duty, in uniform, using a police vehicle, and had initially been performing a legitimate policing function by offering assistance. The standard common law test for vicarious liability (whether the employee was acting in the course and scope of employment when the delict was committed) remains applicable and is consistent with the Constitution, even in cases involving serious violations of constitutional rights by State employees.

Scott JA expressed deep sympathy for the appellant and the thousands of women raped annually in South Africa, stating that ideally all should receive compensation, but that this is a matter for the Legislature and beyond the court's jurisdiction. Erasmus AJA's separate judgment contains extensive obiter on the nature of legal duties owed by police and critiques the decision in Hirsch Appliance Specialists v Shield Security Natal (Pty) Ltd 1992 (3) SA 643 (D), agreeing with academic criticism that intentional wrongdoing in deliberate frustration of an employer's purpose takes conduct beyond the scope of employment. Erasmus AJA also observed that even accepting a specific legal duty existed to protect the appellant, the criminal acts constituting the breach took the policemen outside their employment scope. The court noted that circumstances where a policeman could commit rape in the course and scope of employment 'must be extremely rare' - possibly only where rape is used to intimidate for the purpose of eliciting information in solving a crime.

This case is significant in South African law as it definitively establishes the limits of vicarious liability of the State for criminal acts committed by on-duty police officers. It affirms that the standard test for vicarious liability applies even in constitutional cases involving police misconduct and fundamental rights violations. The judgment clarifies that the degree of deviation from employment duties is determinative - extreme deviations motivated by personal gratification fall outside the scope of employment. The case also confirms that the Constitutional Court's decision in Phoebus Apollo established that the common law test for vicarious liability is consistent with constitutional values and does not require development to impose absolute liability on the State. It distinguishes cases dealing with wrongfulness (such as Carmichele and Van Eeden) from vicarious liability cases. The judgment demonstrates judicial sympathy for rape victims while maintaining that expansion of State liability is a matter for the Legislature, not the courts.