Vonnisbespreking: Die Konstitusionele Hof bevestig die aanspreeklikheid van die polisie weens nalatige ondersoek na verkragting AK v Minister of Police [2022] ZACC 14 (KH)
Authors:   Universiteit van die Vrystaat, Neethling Johann 
Published: September 2022

In this case the plaintiff (K) instituted a delictual action for damages against the SAPS for its negligent search and investigation after she had been raped. The trial court, the Supreme Court of Appeal and the Constitutional Court confirmed that for a delictual action to succeed, the plaintiff must prove all the requirements of a delict. All three decisions focussed on the elements of wrongfulness, negligence and causation and commenced with negligence because it was most convenient to do so. In this regard the classic test of the reasonable foreseeability and preventability of damage (harm) by the expert in the circumstances (not the person in the street) was applied: in the trial court the criterion was that of a reasonable police official, while in the appeal court and the Constitutional Court the standard was that of a reasonable organ of state. It is submitted that although these two formulations may differ, they reflect the same standard of the reasonable police expert. After a thorough investigation of the facts and evidence by the three courts, they arrived at different conclusions – the trial court and the Constitutional Court held that the police were grossly negligent while the appeal court found that they acted reasonably. As negligence was absent according to the latter court, there was no question of a delict and, consequently, no liability. It therefore makes no sense that this court continued with the question as to wrongfulness. As regards wrongfulness the crucial question was whether the police had a legal duty to prevent the harm of K. However, the approach of the courts differed. The trial court applied the traditional boni mores test and found that the police had such a duty which they breached and thus acted wrongfully. On the other hand, the appeal court applied the new test of the reasonableness of imposing liability on the police, and held that wrongfulness was absent because a multiplicity of actions could result from recognising that the police had a legal duty, and would also open the floodgates to claims against the SAPS. However, the Constitutional Court did not agree. Applying both the boni mores test and the reasonableness of imposing liability test, it found that the police acted wrongfully for the following reasons: the appeal court did not consider the constitutional duty to protect K against gender-based violence; the SAPS seriously and significantly breached its statutory and constitutional duties towards K; the imposition of liability would not have a chilling effect on the activities of the police and would also not open the floodgates to claims against the police; denying liability would rather have a chilling effect on the ability of survivors of gender-based violence to vindicate their rights; finally, to hold the SAPS to account for their below-par searches and investigations would improve the efficacy and quality of their work, as well as building public confidence in their ability and commitment to discharge their constitutional obligations. As to causation, all three courts applied the conditio sine qua non test for factual causation and the flexible test for legal causation and came to similarly opposite conclusions as in the case of negligence and wrongfulness. The appeal by K against the decision of the Supreme Court of Appeal therefore succeeded and the decision of the High Court was in principle confirmed. It is submitted that the decision of the Constitutional Court deserves approval.