The Law of Bureaucratic Negligence in South Africa: A Comparative Commonwealth Perspective

JurisdictionSouth Africa
Date15 August 2019
Pages117-157
Published date15 August 2019
Citation2006 Acta Juridica 117
AuthorChuks Okpaluba
The Law of Bureaucratic Negligence in
South Africa: A Comparative
Commonwealth Perspective
CHUKS OKPALUBA*
University of Fort Hare
I INTRODUCTION
If the law governing bureaucratic negligence
1
had developed in South
Africa before the coming of the democratic dispensation, it would have
done so along the same lines that public authority liability in negligence
had developed in other parts of the old Commonwealth. That is, through
the expansion of the frontiers of the legal duty to take care in the law of
delict. But that was not to be. Nor could the law possibly have developed
by way of constitutional damages since no South African constitution
prior to 1994 embodied a bill of rights. Given the context in which they
functioned during the apartheid era, it is understandable that the courts
were not prepared to impute liability to government functionaries who,
as it were, discharged legitimate government business and carried out
functions prescribed by legislation, the then supreme source of law.
Consonant with the courts’ reluctance during the apartheid regime to
hold against Government in matters of public adjudication, they found
solace in the absence of a general theory of liability of public bodies that
pervaded this branch of administrative law by clinging to that nebulous
jurisprudential weasel called ‘policy’.
2
To them, public policy, of which
* Adjunct Professor of Law, Nelson R Mandela School of Law,University of Fort Hare.
1
The def‌inition of ‘bureaucracy’ or ‘bureaucratic’in an ordinary dictionary may not be of
much help in determining the province of this enquiry, though it may clearly indicate the class
of functionaries that are within the range of this study. Black’s Law Dictionary 6 ed (1990) 197
def‌ines ‘bureaucracy’ as: ‘An organization, such as an administrative agency or the army, with
the following general traits: a chain of command with fewer people at the top than at the
bottom; well def‌ined positions and responsibilities; fairly inf‌lexible rules and procedures; ‘‘red
tape’’; many forms to be f‌illed out; and delegation of authority downward from level to level.’
The concern here is not with business or company bureaucracy. Rather, it is about the
traditional bureaucracy that is a government department or authority. The study deals with
those functionaries charged with the responsibility of taking decisions on behalf of the organs
of State within the strict meaning of ‘administrative action’ in modern terms. The discussion
therefore focuses on those who perform functions or discharge duties in the exercise of purely
administrative and decision-making processes. As conceived in this paper, bureaucratic
negligence is a study of the acts or omissions of government departments, local authorities,
planning or licensing authorities in the discharge of public powers vested in them by the
Constitution or statute. The question turns on whether a legal duty of care exists that will give
rise to a claim in damages in negligence.
2
See Okpaluba ‘Justiciablity, constitutional adjudication and the political question in a
nascent democracy: South Africa (part 2)’(2004) 19 SA Public Law 114 at 117 esp. footnote 82.
117
2006 Acta Juridica 117
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the courts were, and still are, the prime and ultimate determinants, was
not in favour of imposing liability on public authorities or, for that
matter, extending the legal duty to take care in the f‌ield of public
administration.
3
This, in a nutshell, was the state of the law as at 27 April
1994. However, with the coming into effect on that date of an
autochthonous Constitution entrenching an elaborate Bill of Rights
incorporating strongly worded enforcement provisions empowering the
courts to grant ‘appropriate relief’ and to make ‘just and equitable’ orders
for the enforcement of the guaranteed rights, the South African
perspective on public law remedies in general,
4
and recovery of damages
for governmental wrongs in particular, was destined to change. Happily,
the Constitutional Court approached the matter from that angle: of
change, transformation, progressive development of the common law
and upholding governmental accountability.
Quite apart from the powers vested in the courts specif‌ically to enforce
the provisions of the Bill of Rights, there is another factor that
particularly inf‌luenced the development of bureaucratic delictual liability
under the current dispensation in South Africa. It is the peremptory
constitutional injunction that the courts ‘must’ develop the common law
having regard to the spirit, purport and objects of the Bill of Rights.
5
Two distinct propositions arise from this constitutional imperative. First,
a combination of the powers of the courts to grant ‘appropriate relief’ in
section 38 and to make ‘just and equitable’ orders within the context of
section 172(1)(b) suggests that an applicant for breach of fundamental
rights can recover ‘constitutional damages’ as understood in Common-
wealth constitutional jurisprudence courtesy of the Privy Council
decision in Maharaj v Attorney General of Trinidad & Tobago (No 2).
6
Secondly, it is clear that the mandatory provisions of section 39(2)
similarly empower the courts to award damages for breach of fundamen-
tal rights through the South African common law, having regard to the
parallel developments of the law of governmental liability in other
common law jurisdictions.
7
3
Minister of Law & Order v Kadir 1995 (1) SA303 (A); Knop v Johannesburg City Council 1995
(2) SA 1 (A).
4
See Okpaluba ‘Of ‘‘forging new tools’’ and ‘‘shaping innovative remedies’’: Unconstitu-
tionality of legislation infringing fundamental rights arising from legislative omissions in the
new South Africa’ (2001) 12 (3) Stellenbosch Law Review 462; Okpaluba ‘Extraordinary
remedies for breach of fundamental rights: Recent developments’ (2002) 17 (1) SA Public Law
98.
5
S 39(2), Constitution of the Republic of South Africa 1996.
6
7
The preference for the use of the common law as the vehicle for the recovery of damages
for breaches of fundamental rights by public authorities could be attributed to the judgment of
Ackermann J in Fose v Minister of Safety & Security 1997 (3) SA 786; (7) BCLR 851 (CC) para
58(b).
118 COMPARING ADMINISTRATIVE JUSTICE ACROSS THE COMMONWEALTH
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Having moved away from their initial hesitation to extend the
boundaries of the Donoghue v Stevenson
8
duty of care principle to public
authority liability
9
and after embracing the new law of bureaucratic
negligence, the courts in the Commonwealth have tried different
methods at different times to determine whether public authorities
should be held liable for their negligent conduct or omissions, to the
extent that the law cannot possibly be presented in a straightforward
manner.
To begin with, the courts began to demonstrate enthusiasm in
recognising that a duty of care could arise where the necessary proximity
existed between the public authority and the individual. During this era,
the courts began to appreciate the logic in the reasoning of Lord
Blackburn in Geddis v Proprietors of Bann Reservoir
10
to the effect that:
. . . it is now thoroughly well established that no action will lie for doing that
which the legislature has authorized, if it be done without negligence,
although it does occasion damage to anyone, but an action does lie for doing
that which the legislature has authorized, if it be done negligently.
11
This change in approach was the result of the decision of the House of
Lords in Hedley Byrne v Heller
12
whereby the principle of the duty of care
was advanced thus marking the turning point in the development of the
modern law of negligence. Simply put, the Atkinian neighbour principle
in the law of negligence
13
was a progressive step, extended to the sphere
of negligent misstatement made in the absence of a contractual or
f‌iduciary relationship, but in the course of a business transaction.
14
In
effect, a negligent though innocent misrepresentation, made orally or in
writing by the banker in conf‌idence who knew full well or ought to have
8
9
See eg East Suffolk Rivers Catchment Board v Kent [1941] 4All ER 527; [1941] AC 74 (HL),
contra per Lord Atkin dissenting [1941] 4 All ER 527 at 534A–B; per Atkin LJ, Everett v
Griff‌iths [1920] 3 KB 163 at 199. See also the New South Wales Court ofAppeal denying that
the duty of care principle was applicable to public bodies: Revesz v Commonwealth [1951] 51 SR
(NSW) 63 at 67, 70 & 72; Millar & Croak Pty Ltd v Auburn Municipal Council (1960) SR (NSW)
398 at 400.
10
(1878) 3 App Cas 430 at 455–6 approved in Home Off‌ice v Dorset YachtCo Ltd [1970] 2 All
ER 294.
11
See also Great Central Railway Co v Hewlett [1916] 2 AC 511. Contra Fisher v
Ruislip-Northwood UDC [1945] KB 584.
12
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; [1963] 2All ER 575.
13
See Donoghue v Stevenson [1932] AC 562.
14
Cf the Canadian case – Blois v City of Halifax (1921) 54 Nova Scotia Report 207 – decided
a decade ahead of the decomposed snail in an opaque ginger-beer bottle case (Donoghue v
Stevenson) where the Court of Appeal of Nova Scotia held a municipality liable for the
negligence of the tax off‌icial of the municipality. The damages awarded included the expenses
with interests and costs incurred by the plaintiff in consequence of the misinformation given by
the off‌icial to the plaintiff on the strength of which the plaintiff concluded the agreement to
purchase an estate and suffered f‌inancial loss.
119THE LAW OF BUREAUCRATIC NEGLIGENCE
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