State liability for police action with specific reference to Minister of Police v Rabie 1986 (1) SA 117 (A)
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Authors
Negota, Khakhathi Samuel
Issue Date
1995-02
Type
Dissertation
Language
en
Keywords
Alternative Title
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.
Description
Citation
Negota, Khakhathi Samuel (1995) State liability for police action with specific reference to Minister of Police v Rabie 1986 (1) SA 117 (A), University of South Africa, Pretoria, <http://hdl.handle.net/10500/15593>