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Minister of Safety and Security v Van Duivenboden (209/2001) [2002] ZASCA 80 (22 August 2002)

.RTF of original document

THE SUPREME COURT OF APPEAL

OF SOUTH AFRICA

Reportable

CASE NO: 209/01

In the matter between :

MINISTER OF SAFETY AND SECURITY Appellant

and

DIRK VAN DUIVENBODEN Respondent

___________________________________________________________________________

Coram: HOWIE, MARAIS, NUGENT JJA HEHER et LEWIS AJJA

Heard: 17 MAY 2002

Delivered: 22 AUGUST 2002

___________________________________________________________________________

J U D G M E N T

___________________________________________________________________________

MARAIS JA/

MARAIS JA: [1] Subject to what follows I concur in the judgment of Nugent JA. I am satisfied that the police were duty-bound in law to act, that they were negligent in failing to do so, and that their negligent omission was a sufficiently potent cause of the harm and attendant loss which respondent suffered.

[2] I reach that conclusion by applying the tests set forth in Minister van Polisie v Ewels¹ and Kruger v Coetzee² and regard it as unnecessary to bolster it by reference to either the Interim Constitution or the Constitution. For all their momentous and enormous historic, symbolic, legal and emotional significance and status as the supreme law, in my view, their existence has little bearing upon this particular case.

[3] Prior to their advent it was the law that assault is unlawful, that the police are under a positive duty in law to protect citizens from assault when in a position to do so, and that, if they negligently fail to do so, the State will be liable in damages. I hesitate to accept unreservedly that the listing in the Bill of Rights of a right (whether it be a newly accorded right or a longstanding one) necessarily gives rise to the existence of a legal duty to act where none existed previously. For example, consider the right to life. It can hardly be suggested that an omission by an ordinary citizen to rescue someone in peril or to come to the defence of someone under attack which would not have been regarded as a breach of legal duty prior to the

Constitution, will now have to be so regarded. Indeed, Nugent JA appears to recognise that.³

[4] As I understand my learned brother Nugent, it is not the inclusion in the Bill of Rights of the right to human dignity, to life, and to security of person alone which is decisive (with which I would agree) but, in the case of the State, the additional factor of constitutionally required accountability. I doubt that the accountability of which s 41 (1) (c) of the Constitution speaks (“All spheres of government and all organs of State within each sphere must --- provide effective, transparent, accountable and coherent government for the Republic as a whole ---“) can be regarded as prima facie synonymous with liability under the lex Aquilia for damages for omissions to act.

[5] I accept that in a given case the accountability requirement may prompt a finding that there is liability for a negligent omission to act but I would prefer not to elevate accountability to the status of a factor giving rise to something akin to a rebuttable presumption of liability to pay damages under the lex Aquilia. Generalisations of that kind may result in consequences which were never intended when applied to other situations. The circumstances of this case do not call for generalisation sourced in either of the Constitutions and, for my part, I shall avoid it.

[6] As I see the position, whether or not the particular right which has been assailed or infringed as a consequence of an omission to act is one included in the Bill of Rights, the test set forth in Ewel’s case will have to be applied. If the right does happen to be one of those listed in the Bill of Rights that will of course put an end to any argument that might otherwise have arisen as to whether it is a right to which society attaches great significance. But the ultimate question will remain: is an omission to act which is out of kilter with the value society assigns to the right and which results in loss to be actionable? That question has to be answered by applying the test laid down in Ewel’s case.⁴

[7] In answering it, it will also be necessary to bear in mind, as Nugent JA has, that it is usually the omissions of individual functionaries of the State which render it potentially liable. If one is minded to hold the State liable, one will at the same time be holding the individual functionary liable. That he or she may never be called upon to pay is not a good reason for ignoring the concomitant personal liability which will be inherent in finding the State liable. That does not mean of course that the spectre of personal liability should be allowed to paralyse a court when it is considering whether to recognise that a legal duty to act exists. It is simply a reminder that more is at stake than imposing liability upon an amorphous entity such as the State.

[8] With respect, I regret that I am obliged to dissent from the suggestion made in par 12 of the judgment of Nugent JA that, in order to avoid conflating two separate elements of liability, it might be helpful to assume that the omission was negligent when asking whether, as a matter of legal policy, the omission ought to be actionable. In my opinion, that does conflate them and, more importantly, loads the dice emotionally in favour of a positive answer to the conceptually separate question of whether there is a legal duty to act at all.

[9] I, too, would dismiss the appeal with costs.

­_________________________

R M MARAIS

JUDGE OF APPEAL