Phoebus Apollo Aviation CC v Minister of Safety and Security

• Jurisdiction: South Africa
• Court: Constitutional Court
• Judge: Chaskalson CJ, Langa DCJ, Goldstone J, Kriegler J, Mokgoro J, Ngcobo J, O'Regan J, Sachs J and Yacoob J
• Judgment Date: 28 November 2002
• Citation: 2003 (2) SA 34 (CC)
• Hearing Date: 05 November 2002
• Docket Number: CCT 19/2002
• Counsel: B Pretorius (with him P E Jooste) for the appellant. W H Trengove SC for the respondent.

Kriegler J: D

[1] The High Court in Pretoria awarded the appellant damages against the respondent. The Supreme Court of Appeal (the SCA) [1] 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 E 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 F 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 G not even stationed at Midrand, [2] 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. H

[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 I protected in its

Kriegler J

property [3] and might well involve developing the common law relating to the vicarious liability of the A State for delicts committed by police officers. The appellant also raised the special obligations imposed on the South African Police Service by the Constitution. [4] Section 39(2) of the Constitution [5] does indeed command all courts to promote the spirit, purport and objects of the Bill of Rights in developing the common law; and s 167 of the Constitution does vest the B ultimate responsibility to ensure compliance with this prescript of s 39(2) in the Constitutional Court. It is also correct, as the appellant contended, that this jurisdiction was exercised in the case of Carmichele. [6] The Court there analysed the constitutional obligation resting on the State, acting through the agency of the police and the prosecution service, to C 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; D 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 E appellant, must be sought in the provisions of s 25(1) of the Constitution. [7] 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 F t...