Reconsidering the state’s liability for harm arising from crime: The potential development of the law of delict

• Jurisdiction: South Africa
• Pages: 361-391
• Citation: (2019) 30 Stell LR 361
• Date: 31 January 2020
• Published date: 31 January 2020
• Author: Bernard Wessels

361

RECONSIDERING THE STATE’S LIABILITY FOR

HARM ARISING FROM CRIME: THE POTENTIAL

DEVELOPMENT OF THE LAW OF DELICT*

Bernard Wessels

BA (Hons) LLB (Stell) BCL (Oxon) LLD (Stell)

Lecturer in Private Law, Stellenbosch University

1 Introduction

South Africa is plague d by crime.1 Violent crime, in particular, has reached

epidemic proportions. T he most striki ng crime statist ics are unequivocal.

South Africa has one of the h ighest murder rates in the world: 35,8 per 100 000

members of the population were murdere d in 2017/2018, with approximately

56 murders being recorded on average pe r day in this period .2 In 2011, t he

European Inst itute for Crime Prevention and Cont rol International Stat istics

on Crime and Justice ind icated that around 1 188 assaults were recorded for

every 100 000 people.3 On a related point, the Sout h African Police Serv ices

(“SAPS”) recorded 167,352 assaults with t he intent to inict grievous bodily

harm in 2017/2018.4 This me ans that, on average, 458 such assaults were

recorded every day.5 Unsurpr isingly therefore, South Afr ica is considered

as having one of the highest assau lt rates worldwide.6 Contrary to ofcial

statistics provided by the SAPS, i ndependent research ind icates that the

* This chapte r is based on researc h undertaken i n fulfilme nt of the requirement s for the LLD degree at t he

Faculty of Law, Stellenbo sch University: AB Wessels Dev eloping the South Africa n law of delict: The

creation of a st atutory compensat ion fund for crime victim s LLD dissertation Stel lenbosch University

(2018)

1 Africa Che ck “Factsheet: South A frica’s crime statis tics for 2017/18” (06-12-2018) Af rica Check

africacheck org/factsheets/factsheet-south-africas- crime-statistics-for-2017-18/> (accessed 18-02-2019);

South Afri can Police Service “Cri me Statistics” (14-09-2018) SAPS

crimest ats php> (accessed 18-02-2019) See further AB Wess els Developing t he South Afri can law of

delict: The cre ation of a statutory co mpensation fund for c rime victims LLD diss ertation, Stellenb osch

University (2018) 201-207 and PP Imier a “Crime , Crimi nality a nd Victim s of Cr ime in South A frica:

Issues Ari sing” (2018) 6 International Journal on Criminology.

2 Africa Che ck “Factsheet: South Af rica’s crime statistic s for 2017/18” Africa Check Se e further Wessels

Developing th e South African la w of delict 201-207

3 European I nstitute for Cr ime Prevent ion and Control Int ernation al Statistic s on Crime and Jus tice

“Countrie s Compared by Crime > Ass ault rate Internat ional Statistics at Natio nMaster com” (undated)

Nation Master tp://www nationmastercom/count ry-info/stats/Crime/Assault-rate> (accessed 07-01-

2019) Se e further Wessel s Developing the Sou th African law of deli ct 201-207

4 Africa Che ck “Factsheet: South Af rica’s crime statist ics for 2017/18” Africa Check

5 Africa Che ck “Factsheet: South Af rica’s crime statist ics for 2017/18” Africa Check

6 See furt her Wessels Developing t he South African l aw of delict 201-207

(2019) 30 Stell LR 361

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number of rapes that occu r during the cou rse of one year may be in the order

of half a million.7

Some perspective on the exceedi ngly high levels of crime in South Afr ica

can furt her be obtained by compar ing crime stat istics and motor vehicle

accident data: The 18 673 murders that occur red for the period 2015-20168

is much higher than the 13 591 people who died as a result of motor vehicle

accidents that occur red in 2015,9 while the 182 933 assaults with the intent to

do grievous bodily har m recorded for the same period10 is almost three t imes

more than the number of people who were seriously inju red in motor vehicle

accidents in 2015 (62 520).11

While the law may respond i n various ways to this problem, th is article

will focus on the issue of cri me victim compensation. Violent crime v ictims

interested in obta ining compensation gene rally tur n towards private law

(the law of delict, specically) to seek a remedy for the harm su ffered in the

process.12 However, for the reasons set out below, the current compensat ory

regime in respect of har m arising fr om violent crime – and the reliance on,

and application of, common-law delictual pr inciples – may be regarded as

unsatisfactor y. Agains t this background, it is wor thwhile to consider whether

the law of delict should develop. And, if so, how?

The most prevalent alternat ive adopted in foreign jurisdict ions is the

enactment of a crime v ictim compensation scheme.13 Could such a solution

be justied in the South African c ontext? This would entail la rge-scale

7 Although the of ficial SAPS crime st atistics for 2015-2016 indicates that 42 596 rape s were reported to

the police, th is statistic has been c riticised as ignori ng the considerable impac t of under-reporting See

Rape Crisis Ca pe Town Trust “Prevale nce” (undated) Rape Crisis za/rape-in-south-

africa/# prevalence> (accessed 18-02-2019); Afric a Check “Rape St atistics in Sou th Africa: A G uide”

(22- 6-20 16) Africa Check org/factsheets/guide-rape-st atistics-in-south-africa/>

(accessed 18-02-2019); Indepe ndent Police Invest igative Direct orate Annual Re port 2012/2013 (2013)

15-16; News24 “Rape in South Af rica” (10-08-2016) News24 com/MyNews24/rape-

in-south-africa-20160810> (accessed 18-02-2019)

8 SAPS Annual Cr ime Report 2015/2016: Addendum to the SAPS An nual Report 2015/2016 (2016) 108

9 Road Traffic Ma nagement Corpor ation The Costs of Cr ashes in South Afr ica (2016) ii

10 SAPS Annual C rime Report 2015/2016 108

11 RTMC Th e Costs of Crashes in S outh Africa ii

12 In the South Af rican context, it i s suggested that th e following crimes sho uld specifically b e recorded as

violent crime s: crimes agai nst life (murder); cri mes against t he person (assault , including com mon assault

and assault w ith the intention to do g rievous bodily ha rm); rape (as defined in t he Criminal Law (Sex ual

Offences and Rel ated Matters) Amendment Ac t 32 of 2007); and other sexual offenc es (as the term i s

defined in l ast-mentioned Act)

13 New Zealand wa s the first jurisdic tion to adopt a crime victi m compensation scheme in 1963, shor tly

followed by the United K ingdom (“UK”), where such a sche me became operative in 1964 There after,

this solution wa s also endorsed i n several Europ ean jurisd ictions as well as va rious Austr alian, Amer ican,

and Canadi an states and terr itories A detailed descrip tion of the historical develop ment leading to the

enactment of t hese scheme s, and a discu ssion of the oper ation of the sche mes in the res pective ju risdict ions,

fall outside the s cope of this article However, for a comprehen sive discussion of these issues, s ee RE

Scott “Compen sation for Victims of Violent Cri mes: An Analysis” (1967) 8 William & Mary La w Review

277 278; B Camero n “Compens ation for Victims of Crim e, The New Zeala nd Exper iment” (1963) 12

Journal of Publ ic Law 368; M Fr y “Just ice for Victi ms” (1959) 8 Jour nal of Public Law 191 192; J Goodey

Compensat ing Victims of Violent Crime i n the European Union (2003) 11; D Greer (ed) Compensating

Crime Victim s: a European Survey (1996); D McGi llis & P Smith Compensat ing Victims of Crime: An

Analysis of Amer ican Program s (1983); Natio nal Ce nter fo r Vict ims of Crime Repairing the Har m (2004);

Canadian Res ource Center for Victims of Crim e “Financial Assistan ce” (undated) CRCVC ps://crcvc

ca/for-victims /financial-a ssistance/> (acce ssed 18-02-2019); D Miers “State comp ensation for victi ms of

violent cri me” in I Vanfraech em, A Pemberto n & FM Ndahind a (eds) Justice for Victim s – Perspectives

362 STELL LR 2019 3

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