State liability and accountability

JurisdictionSouth Africa
Date15 August 2019
Published date15 August 2019
Pages313-335
AuthorAlistair Price
State liability and accountability
ALISTAIR PRICE*
This contribution examines the relationship between two intersecting themes
in Chief Justice Langa’s judgments: the need to hold the state accountable for
its wrongdoing and the need to hold the state liable to pay a monetary sum to a
victim of its wrongdoing. I argue that accountability is promoted by requiring
the state to explain or to justify its actions and by holding it responsible for its
actions. Responsibility for wrongdoing may and should take a variety of
forms, both legal and political. Legal liability to pay money is but one of these.
There are at least four distinct grounds to hold the state liable in South African
law. Our courts have relied most heavily on one of these routes, namely the
law of delict. Although in principle this is welcome, in future further attention
should be given to the possibility that awarding ‘public law’ compensation as
an alternative, whether constitutional damages or an award grounded in
administrative law, may on occasion be a better means to hold the state
accountable for failures to perform its distinctive obligations.
I INTRODUCTION
I wish to pay tribute to Chief Justice Pius Langa by exploring two
intersecting themes addressed in his judgments.
1
These are state
2
liability
and accountability. In particular, I wish to examine the relationship
between holding the state accountable for its wrongdoing and holding the
* Associate Professor, University of Cape Town; Advocate of the High Court of South
Africa; BBusSci LLB (Cape Town)BCL (Oxon) PhD (Cantab).
1
See eg Minister of Safety and Security v Luiters 2007 (2) SA 106 (CC) para 34 (the need to
render the exercise of public power accountable is relevant when applying the law of delict to
the state) and President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd
(Agri SA and Others, Amici Curiae)2005 (5) SA 3 (CC) paras 60–5 (constitutional damages,
rather than delictual damages, may on occasion be awarded against the state).
2
In this contribution, the term ‘state’should be understood broadly to encompass all entities
or functionaries (whether or not part of the traditional institutional core of government) which
‘exercise a public power or perform a public function’ whether in terms of the Constitution of
the Republic of South Africa, 1996, a provincial constitution, legislation, other law, or a
contract. This ‘functional’ def‌inition of the scope of the state differs from older ‘institutional’
def‌initions, which focused on the nature of institutions rather than on the nature of their
functions. Today‘[w]hat matters is not so much the functionary as the function’: President of the
Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA1
(CC) para 141. See also ss 7(2), 8(1), and 239 of the Constitution, s 1(b) of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA), and AAA Investments (Pty) Ltd v Micro Finance
Regulatory Council and Another 2007 (1) SA 343 (CC) paras 40–1. This ‘functional turn’ in
delineating the boundaries of the state (ie persons and bodies who perform public functions) is
not unique to South Africa. English administrative law, for example, has also ‘shifted from
controlling the institutions of (central and local) government to controlling the exercise of functions of
governance (whatever they may be) whether performed by government or non-government
entities’: P Cane Administrative Law 4 ed (2004) 5. See also P Cane ‘Accountability and the
Public/Private Divide’ in N Bamforth & P Leyland (eds) Public Law in a Multi-Layered
Constitution (2003).
313
2015 Acta Juridica 313
© Juta and Company (Pty) Ltd
state liable to pay a monetary sum to a victim of its wrongdoing. The
analysis will proceed in three stages. The notion of accountability will be
examined f‌irst. Thereafter the different kinds of liability that may be
imposed on the state in South African law will be distinguished. Finally
the evolving relationship between state liability and accountability will be
addressed. I shall analyse the current status of our law’s development and
describe important doctrinal choices that are still to be made. The law
regulating state liability could develop in a variety of directions in the
future.
This article is written at a time when the need to hold South African
public functionaries accountable for wrongdoing is grave. Recent reports
of alleged abuses of power by police and correctional services off‌icers, in
particular, are widespread. Systemic, unlawful use of excessive force is a
serious concern. At the time of writing, the Farlam Commission of
Inquiry into the tragic police shooting of striking mineworkers in
Marikana was ongoing and the O’Regan-Pikoli Commission of Inquiry
into policing in Khayelitsha had recently completed its work. Institute for
Security Studies research indicates that cases of alleged police brutality
increased by 313 per cent between 2001 and 2011.
3
The Independent
Police Investigative Directorate reports that it received 275 complaints of
deaths in police custody in the 2012/2013 f‌inancial year.
4
The deaths of
Andries Tatane and Nqobile Nzuza during protest action, to take just two
examples, have been much publicised. An understandable reaction to
such events – particularly among lawyers and litigators – is to assume that
the best way to promote the accountability of the state is to impose on it
ever-greater liabilities sounding in money. Nonetheless, I shall argue that
the relationship between state accountability and liability is not always
straightforward. If new kinds or categories of liability are to be imposed on
public functionaries, careful thought should be given to the form that
these take, whether in the law of delict or on another basis. It should also
be considered whether, in some contexts, more reliable enforcement of
existing laws, and better provision of alternative legal and political
accountability mechanisms, may help to improve governance as much as,
if not more than, stretching the outer-limits of state liability. It is hoped
that the following analysis, which focuses on legal doctrine, may contrib-
ute to sober debate about these matters.
3
G Newham ‘Warning lights f‌lashing: Exploring police abuses and performance in South
Africa’ (paper presented at 4thAnnual ISS Conference on National and International Perspec-
tives on Crime and Criminal Justice, 2013), available at http://www.issafrica.org/uploads/
2013CrimeConfNewham.pdf (accessed on 19April 2014).
4
Independent Police Investigative Directorate Annual Report 2012/13 (2013) 16, available
at http://www.ipid.gov.za/documents/report_released/annual_reports/2013/IPID%20Annual
%20Report%202012–13.pdf (accessed on 19April 2014).
314 A TRANSFORMATIVE JUSTICE:ESSAYS IN HONOUR OF PIUS LANGA
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