State liability for police action with specific reference to Minister of Police v Rabie 1986 (1) SA 117 (A)

Abstract

This study sought to make a detailed discussion of state liability for police action with specific reference to the case of Minister of Police v Rabie 1986 (1) SA 117 (A). The historical development of state liability was traced from Roman-Dutch Law, through English Law up to and including South African Law. The major part of this work has been devoted to an indepth discussion of the case of Minister of Police v Rabie 1986 (1) S.A. 117 (A), which is the modern locus classicus on state liability for police action in South Africa. In this case the risk principle appears to have been expressly incorporated into South African law. This is the principle which postulates that the injured party should be compensated even if there was no fault on the part of the wrongdoer. During the course of this study a brief discussion of case law that followed the Rabie decision was also made. The risk principle adopted in the Rabie case was rejected and subjected to severe criticism, These decisions suggested the application of the traditional standard test which places emphasis on the question of whether the policeman's acts were done within the course and scope of his employment. The case of Minister of Law and Order v Ngobo 1992 (4) SA 822 (A) was even bold enough to reject the principle on the basis that it is controversial and untried. The drastic inroad made by certain sections of the Constitution of the Republic of South Africa Act 200 of 1993 into this field of study was also acknowledged. It was submitted that in the light of this new law, the members of the police force as protectors of individual rights will in future have to be carefully chosen, screened, trained and constantly supervised in order to minimise the number of claims against the state based on damages. It was finally accepted that in so far as the test for vicarious liability is concerned, the Appellate Division in Ngobo 's case has, by reverting to the application of the traditional standard test, overruled its previous decision in the Rabie case. It was submitted that an uncertainty in the law has been created by these conflicting decisions and legislative intervention is therefore warranted.