Vonnisbespreking: Die tragiese gevolge van onbevoegde polisie-optrede – die hof maak (te) korte mette met flou verskonings
Authors:   Universiteit van Suid-Afrika, Scott Johan 
Published: December 2022

The tragic results of incompetent police conduct – the court gives (too) short shrift to weak excuses The facts of the Sitali judgment provide a good example of how the incompetent conduct of police officials under unnerving conditions for the plaintiff gave rise to state liability. The plaintiff, Sitali, was surprised late one afternoon when his premises were invaded by a large, aggressive crowd wielding sticks, pangas and axes, three of whom approached and started attacking him, inter alia by firing shots at him with a handgun. Having fortunately escaped harm, the plaintiff thereupon attacked the three with a spear, causing them to flee and one of them even to drop and abandon a firearm. On departing from the scene they threatened the plaintiff that they would later return to deal with him. Sitali then picked up the firearm and concealed it on his property before summoning the police. A police vehicle with four occupants arrived sometime later. After the plaintiff had explained the situation to the policemen, their only reaction was to arrest him on suspicion of possession of an unlicensed firearm. His explanations as to how the firearm came to be on his premises and the information divulged to them about the threatening attack by the three ruffians were to no avail. He was forthwith transported to the nearest police station and locked up. That evening his house was set alight and his wife killed. All evidence presented by the police officials regarding their alleged search for the three culprits and offer to provide a temporary safe haven for the plaintiff’s family was rejected on account of their untrustworthy performance in court. The court therefore found that they had failed to take effective steps to protect the person and property of the plaintiff and his family members. The court then proceeded to evaluate the conduct of the police officials implicated to determine whether it conformed to the requirements of the delictual elements of wrongfulness, negligence and causation. Regarding wrongfulness, the court decided on the authority of the old case of Minister van Polisie v Ewels (1975) that the policemen’s failure to lodge a search for the thugs had been wrongful, because by such failure they breached a legal duty resting on them in terms of the legal convictions of the community. With respect to the determination of a legal duty under similar circumstances, it has on several occasions been authoritatively pronounced in various judgments since the dawn of our new constitutional dispensation that constitutional imperatives have a major role to play. Unfortunately the court failed utterly in invoking such principles in this judgment. The court could at least have referred to the judgment of the Supreme Court of Appeal in Minister of Safety and Security v Van Duivenboden (2002), and could also have found guidance in the recent judgment of the Constitutional Court in AK v Minister of Police (2021). Strangely enough, the court failed to arrive at an express finding of wrongfulness in respect of the policemen’s dereliction of their duties, although it was in later paragraphs accepted that their omissions had been wrongful. In respect of negligence the court merely referred to and quoted the classical formulation of the diligens paterfamilias test from the famous judgment in Kruger v Coetzee (1966), without even the faintest attempt to apply the relevant principles to the facts of the case. The court should in any event have referred to the developed negligence test in the context of state liability, to wit the “organ of state test” recognised by the Constitutional Court in Mashongwa v Passenger Rail Agency of South Africa (2016) in combination with the more stringent test for experts in their field of police work. Here the court also failed to come to an express finding of negligence on the part of the policemen, although such negligence was in later paragraphs merely accepted. Concerning causation, the court only referred to that part of the Van Duivenboden case in which that court in turn referred to the judgment of our erstwhile Appellate Division in International Shipping Co (Pty) Ltd v Bentley (1990) in which the trite distinction between factual and legal causation had been explained. Unbelievably, the court here also failed to apply normal delictual principles to the facts before it and simply declared that the facts and circumstances of the case pointed towards the existence of the required legal causal link between the police officials’ omissions and the plaintiff’s harm. It is worth mentioning that the court spent only one brief paragraph on each of the cardinal delictual requirements. Although the court’s final verdict was that the state is vicariously liable, it never referred to the requirements for that type of strict liability for the obvious reason that it had never been in contention. This judgment is a prime example of an instance where the court underestimated the complexity of the issues it had to decide and as a result failed to apply its mind to important new legal principles developed since the inception of our new constitutional dispensation. It is in fact incredible that the court was willing, on such flimsy authority, to deliver a judgment which as a valid precedent could predict great detriment for the state in the context of future civil claims flowing from defective police conduct. Keywords: causation; delict; expert evidence; negligence; state liability; vicarious liability; wrongfulness