CONSTITUTIONAL COURT OF SOUTH AFRICA 

Case CCT 19/02 

PHOEBUS APOLLO AVIATION CC	Appellant	

versus
		
THE MINISTER OF SAFETY AND SECURITY	Respondent	

 
Heard on : 5 November 2002 
Decided on : 28 November 2002 

JUDGMENT 

KRIEGLER J: 

[1] The High Court in Pretoria awarded the appellant damages against the respondent. The Supreme Court of Appeal (the SCA) reversed the order and the appellant now wants to have the original award restored, alleging constitutional grounds for interference. The basic question is whether the respondent is vicariously liable to the appellant for the conduct of three dishonest policemen. 

[2] The appellant corporation was robbed of a large sum of money one night in November 1998 when an armed gang gained access to the home of the appellant’s controlling member in Midrand. In mid-January 1999 the investigating officer traced part of the spoils to the home of the father of two of the robbers near Tzaneen. Accompanied by an informer the investigating officer went there – only to find that the money had gone. He had been forestalled by the three dishonest police officers who had taken the money the previous day. Although they had nothing to do with the investigation of the robbery and were indeed not even stationed at Midrand, they had got wind of the whereabouts of the money and decided to steal it. On the pretext of being about police business they drove to Tzaneen in a police car. There they induced the father under colour of their authority as police officers to hand over his sons’ cache. None of this money they stole was ever recovered, hence the action against the respondent. 

[3]         Leave to appeal to this Court against the decision of the SCA was granted to the
 appellant on the strength of the contention on its behalf that there was a constitutional
 substratum to the envisaged case. More specifically the application for leave to appeal
suggested that the case involved an infringement of the appellant’s right to be
protected in its property and might well involve developing the common law relating
 to the vicarious liability of the state for delicts committed by police officers. The
 appellant also raised the special obligations imposed on the South African Police
 Service by the Constitution. Section 39(2) of the Constitution does indeed command
 all courts to promote the spirit, purport and objects of the Bill of Rights in developing
 the common law; and section 167 of the Constitution does vest the ultimate
 responsibility to ensure compliance with this prescript of section 39(2) in the
 Constitutional Court. It is also correct, as the appellant contended, that this
 jurisdiction was exercised in the case of Carmichele. The Court there analysed the
 constitutional obligation resting on the state, acting through the agency of the police
 and the prosecution service, to protect women against foreseeable harm at the hands of
 known sexual offenders, and did develop the common law accordingly.

 [4]   Upon closer examination, however, it is clear that none of these contentions
 advanced on behalf of the appellant is valid. The appellant’s property rights under the
 Constitution are not engaged; the duties imposed on the police by the Constitution
 carry the matter no further; and the reliance on the judgment in Carmichele is
 misplaced. The appellant’s constitutional right to be protected in the enjoyment of its
 property was not in issue. The constitutional foundation for this property claim
 advanced by counsel for the appellant, must be sought in the provisions of section
 25(1) of the Constitution. It is clear, however, that these provisions are inapposite
 here. They are aimed at protecting private property rights against governmental action
 and are quite irrelevant here where the appellant was originally deprived of its
 property by robbers and recovery of part of it was later frustrated by the three thieves.

[5]   The judgment of this Court in Carmichele is also not analogous. That case was
 concerned with the issue of wrongfulness. The present case is not concerned with
 wrongfulness but with liability for what were admittedly wrongful acts.

[6]   It was also contended in argument that the respondent should be held liable for
 the wrongful acts of the policemen whether they were acting in the course of their
 employment or not. No convincing argument was, however, advanced to sustain this
 submission, or to show why the common law should be developed so as to impose an
 absolute liability on the state for the conduct of its employees committed dishonestly
 and in pursuit of their own selfish interest. The appellant contended that the policemen concerned were under a duty to inform the investigating officer of the
 information that they had obtained concerning the whereabouts of the money and that
 their failure to do so was a breach of their duties for which the respondent could be
 held liable. This contention, however, lacked the necessary factual basis. There is no
 evidence on the record to show how the three policemen came by this knowledge and
 nothing to support a finding, albeit by inference, that they did so in the course of their
 duties. In the final analysis the appellant’s complaint is that the respondent should be
 held vicariously liable for the loss suffered in consequence of the misappropriation
 simply because the thieves were policemen. It was not denied that the police service
 was under a constitutional duty “to protect and secure the inhabitants of the Republic
 and their property” and was accordingly obliged to hand back to the appellant any of
 the stolen money that it managed to recover. The point at issue was, however,
 whether these duties were breached when the rogue policemen went to Tzaneen and
 stole the appellant’s money: were they acting as policemen or were they pursuing their
 own interests?

[7]    The question whether the respondent should have to answer for the misdeeds of
 the three policemen is an intriguing one. Indeed, questions of this kind are often
 extremely difficult to resolve and the law reports are replete with fascinating examples
 of the infinite variety and complexity of the kinds of cases that have engaged the
 courts for many years. The distinctions are subtle and the dividing lines are often feint
 – and debatable – as the judgment of Farlam JA in the instant case and the authorities

 cited illustrate. Cases such as the present one, where employees deliberately set
 about creating a smoke-screen of routine performance of their duties while actually
 pursuing their own different interests, often require nuanced weighing up of the
 wrongdoer’s subjective intention against the objective manifestations of his or her
 carrying out official duties.

[8]     In this particular instance the enquiry was not assisted by the way in which the
 appellant’s cause of action was set out in its pleadings. The hypothesis on which the
 case was launched was that the rogues were the investigating officers who had
 recovered the money in Tzaneen while acting in the course of their employment and
 within the scope of their duties towards the respondent. In these official capacities
 they were allegedly obliged to have taken custody of the money found and ensured
 that it was returned to the appellant. On the finding of the SCA, that is not at all what
 happened. The rogues were at no stage officially involved in the investigation of the
 robbery or the recovery of its proceeds. In relation to the appellant’s affairs they were
 on the SCA’s finding never about the business of the South African Police Service:
 from start to finish they were engaged in their own nefarious scheme and their
 ostensible exercise of police powers and performance of police duties were intended
 solely as camouflage. On the crucial question of vicarious liability Farlam JA
 accordingly concluded that the taking of the money was not conduct for which the
 respondent had to answer.

[9]     It is not suggested that in determining the question of vicarious liability the
 SCA applied any principle which is inconsistent with the Constitution. Nor is there
 any suggestion that any such principle needs to be adapted or evolved to bring it into
 harmony with the spirit, purport or objects of the Bill of Rights. On the contrary,
 counsel for the appellant expressly conceded that the common law test for vicarious
 liability, as it stands, is consistent with the Constitution. It has long been accepted
 that the application of this test to the facts of a particular case is not a question of law
 but one of fact, pure and simple. The thrust of the argument presented on behalf of
 the appellant was essentially that though the SCA has set the correct test, it had
 applied that test incorrectly – which is of course not ordinarily a constitutional issue.
 This Court’s jurisdiction is confined to constitutional matters and issues connected
 with decisions on constitutional matters. It is not for it to agree or disagree with the
 manner in which the SCA applied a constitutionally acceptable common law test to
 the facts of the present case. As was made plain in Boesak’s case:

“A challenge to a decision of the SCA on the basis only that it is wrong on the facts is
 not a constitutional matter. . . Unless there is some separate constitutional issue
 raised. . . no constitutional right is engaged when an appellant merely disputes the
 findings of fact made by the Supreme Court of Appeal.”

[10] It follows that this Court has no jurisdiction to entertain the appellant’s
 complaint. One must however sympathise with the appellant. The criminal justice
 system has certainly let it down badly and repeatedly. The robbery was in the first
 place only made possible by the treachery of two security guards. Their involvement
 must have been apparent from the outset, yet it took some two months before the
 investigation got around to visiting their parental home. Even worse, at the trial there
 was unchallenged evidence that the police shortly after the robbery actually searched
 the room where the security guards had hidden their share of the spoils but somehow
 failed to find it hidden under the mattress. The three scoundrels were moreover
 policemen who used police facilities and police authority to perfect their crime. When
 they were caught the prosecution case was fecklessly pursued and no effective steps
 were at any stage instituted by the police to force its own rotten apples to disgorge
 their ill-gotten gains.

[11] All in all, therefore, although the appeal falls to be dismissed, there is no
 warrant for penalising the appellant regarding costs.

The order

[12] The appeal is dismissed. There is no order as to costs.

Chaskalson CJ, Langa DCJ, Goldstone J, Mokgoro J, Ngcobo J, O’Regan J, Sachs J
 and Yacoob J concur in the judgment of Kriegler J.

For the appellant: 					B Pretorius and PE Jooste instructed by
 
							Thys Cronje Inc, Pretoria.

For the respondent:  				W. Trengove SC instructed by 
							the State
 Attorney, Pretoria.