The role played by trust in imposing vicarious liability on the state for the intentionally committed violent crimes of police officers
CITATION: Wessels, A. B. 2018. The role played by trust in imposing vicarious liability on the state for the intentionally committed violent crimes of police officers. Journal of South African Law / Tydskrif vir die Suid-Afrikaanse Reg, 2018(4):868-882.
The original publication is available at https://journals.co.za
In recent years the state’s delictual liability has been expanded to a significant degree. Although the state has been held liable in delict for harm arising from a diverse array of factual scenarios (see eg the South African Law Reform Commission “Medico-legal Claims” Paper 33, Project 141 (2017)), the overwhelming number of the state-liability cases appear to deal with harm arising from violent crime. In this context, courts have held the state (mostly the minister of safety and security or, as the office is now known, the minister of police) vicariously liable in two types of circumstances. On the one hand liability has followed where state employees (mostly police officers, but also other state employees such as public prosecutors) negligently and wrongfully failed to prevent the plaintiff’s harm arising from a crime (eg Minister of Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA); Van Eeden v Minister of Safety and Security 2003 1 SA 389 (SCA); Minister of Safety and Security v Hamilton 2004 2 SA 216 (SCA) and Minister of Safety and Security v Carmichele 2004 3 SA 305 (SCA)). In other instances vicarious liability has been imposed on the state for the harm that was intentionally and wrongfully caused by its employees (eg K v Minister of Safety and Security 2005 6 SA 419 (CC) and F v Minister of Safety and Security 2012 1 SA 536 (CC)). This note focuses on aspects related to the judicial expansion of the state’s liability for harm arising from crime in the latter situation. It does so for the following reason. Two recent judgments by the supreme court of appeal have been criticised as undermining the stability that was introduced into this area of the law by the leading judgment of the constitutional court in the K (CC) case (Scott “Intentional delicts of police officers: a hiccup from the supreme court of appeal” 2017 TSAR 872 874-875). In Minister of Safety and Security v Morudu ((1084/13) 2015 ZASCA 91 (29 May 2015)) and Minister of Safety and Security v Booysen ((35/2016) 2016 ZASCA 201 (9 December 2016)), where state employees respectively assaulted and murdered members of the public, the supreme court of appeal declined to hold the state vicariously liable for the harm arising from these intentionally committed crimes of its employees. Scott has argued that these judgments raise “the question of a possible turning-point in the approach towards application of the K test for establishing a sufficiently close link between an employee’s delict and his or her employment” (Scott 876). The judgments in the Booysen and Morudu cases therefore call for a fresh evaluation of the reasoning espoused in the K case and subsequently entrenched in the F (CC) case. Such an analysis may assist in better understanding the reasons for the court’s perceived deviation from the dispensation introduced by the K and F cases. This article, however, does not aim to engage solely with the judgments in the Morudu and Booysen cases (for such an analysis, see Scott), but attempts to provide an explanation for the court’s decision to deny vicarious liability in both cases. In particular, critical attention will be paid to the absence or presence of a relationship of trust between the victim of a crime and the perpetrator. Ever since the judgments in the K and F cases, this factor has played a central role in holding the state vicariously liable for the intentionally committed violent crimes of police officers.