Vicarious liability of the state for the abuse and misuse of firearms by police officers

• Published date: 31 May 2017
• Pages: 1-38
• Author: A.O. Nwafor,C. Okpaluba
• Date: 31 May 2017
• DOI: 10.10520/EJC-e9db1a558
• Record Number: lesotho_v25_n2_a1

VICARIOUS LIABILITY OF THE STATE FOR THE ABUSE AND

MISUSE OF FIREARMS BY POLICE OFFICERS

Okpaluba, C. & Nwafor, A.O.

Abstract

The paper examines the evolving jurisprudence on State’s

vicarious liability in South Africa drawing from the

prevailing trend in the United Kingdom to portray the

extent to which the courts have articulated and adapted to

the modern trend on the issue of the employer’s liability.

The primary focus is on those cases where the police or

other security agents have misused or abused the use of

their official firearms. The inquiry reveals that while there

is some level of consistency in the pronouncements

emanating from the Constitutional Court in South

Africa, the Supreme Court of Appeal seems to continue to

grapple with the dynamics of the jurisprudence in this

field of law.

INTRODUCTION

The common law principle that the master was not liable for the act

of the servant unless the servant was under the control of the

master at the time the wrongful act was committed or was acting

under the instruction of the master was equally applicable in South

 LLB, LLM (London), P hD (West Indies), Adjunct Professor, Nelson

Mandela School of Law, University of Fort Hare, S outh Africa. Email:

Okpaluba@mweb.co.za.

 LLB, LLM, (Nigeria), PhD (UniJos), BL, Professor, School of Law,

University of Venda, South Africa. Email: Anthony. Nwafor@univen.a c.za.

2 LLJ Vol. 25 No. 2

African law.

1

The courts have, however, significantly deviated, and

justifiably so, in the application of this principle in relation to police

liability since, in any event, every police officer was prima facie a

servant of the Crown as in the United Kingdom.

2

The police officer

is presumed, at all times, to have acted under the supervision of his

superiors and as such under the control of the State.

3

Reliance was

then had by the courts on the State Liability Act.

4

The Appellate

Division in two early cases adopted the foregoing liability

principles and added that:

 The reference in the 1957 Act to a person “acting

within the scope of his powers as a servant of the

state”, should be interpreted as “acting within the

scope of his employment”.

 The state is prima facie liable for the actions of police

officers.

 The fact that the police officer’s duty or function is

of a statutory nature, or that the statute confers a

discretionary power on the officer, was not

decisive.

5

1

British South Africa Co v Crickmore [192 1] AD 107; Sibiya v Swart 1950 (4)

SA 515 (A) 520; Dames v De Kock 1958 (1) SA 773 (E); Marinus Wiechers,

Administrative law (1985) 335.

2

Union Government (Minister of J ustice) v Thorne [1930] AD 47 51. In Cox v

Minister of Justice [2016] UKSC 10 para [21] Lord Reed approved of Lord

Phillips observation in Various Claimants v Catholic Child Welfar e Society

[2012] UKSC 56 para [36] that the element of control in vica rious liability

no longer has the significance that it was sometimes considered to have in

the past.

3

Per Hiemstra J in Naidoo v Minister van Polisie 1976 (4) SA 954 (T), 957.

4

Act 20 of 1957.

5

Mhlongo v Minister of Police 1978 (2) SA 551 (A).

3

 The essential question was whether the state had

power of control or supervision over the officer in

the performance of his duties.

6

Having scaled these initial hurdles, the question then shifted to

when can an employee, a fortiori, a police officer, could be said to be

acting within the scope of his employment? In an attempt to answer

this question, the Appellate Division established a test – the so-

called Feldman/Rabie test - the application of which, dominated the

jurisprudence for decades but which, as discussed below, ran into

murky waters whenever deliberate or dishonest acts of police

officers were in issue.

In the last decade, however, the law of vicarious liability in South

Africa and in some common law jurisdictions moved away from

policy to principles.

7

The new development started with the

Canadian Supreme Court,

8

then the House of Lords,

9

the Privy

Council

10

and subsequently, the Constitutional Court of South

6

Minister van Polisie v Gamble 1979 (4) SA 759 (A). It was held in this

wrongful arrest ca se that a police officer was always under the command,

control and supervision of the pol ice authorities when performing his

police duties.

7

Okpaluba and Osode, Government liability: South Africa and the

Commonwealth (2010) para 15.2.1.

8

Jacobi v Griffiths (1999) 174 DLR (4th) 71 (SCC); 671122 Ontario Ltd v Sagaz

Industries Canada Inc [2001] 2 SCR 983; KLB v British Columbia [2003] 2 SCR

403; Doe v Bennett [2004] 1 SCR 4 36; EB v Order of the Oblates of Mary

Immaculate in the Province of British Columbia [2 005] 3 SCR 45; G (BM) v

Nova Scotia (Attorney General) (2008) 288 DLR (4th), 88 (NSCA).

9

Lister v Hesley Hall Ltd [2002] 1 AC 215 (HL); Dubai Aluminium Co Ltd v

Salaam [2003] 2 AC 366 (HL); Majrowski v Guy’s and St Thomas’ NHS Trust

[2006] 3 WLR 125 (HL).

10

Bernard v Attorney General of Jamaica [2004] UKPC 47.