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Sunday, February 1, 2004
Making mistakes

South African Courts have gradually recognised situations in which liability for omissions can be regarded as wrongful and can give rise to liability.

One of the best-known cases is that of Carmichele v the Minister of Safety and Security when Carmichele, who lived in Knysna was assaulted by Francois Coetzee, who had a history of violence and sexual assault. Prior to the assault he had been arrested on a separate charge of rape. Ignoring his violent track record, the investigating officer recommended to the prosecutor that he be released on a warning. Whilst awaiting trial Coetzee assaulted Carmichele.
The Minister was found to be delictually liable to Carmichele on the basis of the wrongful failure by the prosecutor to have proper regard to the information which was placed before him concerning Coetzee’s background and to have him kept in detention.
Another case involved Ewels, an ordinary citizen, who was assaulted by an off-duty police sergeant. He went to the police station to lay a charge of assault. At the police station the same off-duty police sergeant again assaulted him. Other police at the police station failed to intervene.
Ewels sued the Minister on the basis of the failure of the police who had witnessed the assault in the police station to intervene and protect him – and won.
So, does this mean you can sue the police for not doing something to prevent harm to you?
In his paper presented at the Annual Deneys Reitz Insurance Law Seminar, Andrew Strachen, director at the commercial law firm, questioned the limitation of the State’s liability for omissions by reviewing the judgment in Saaiman vs the Minister of Safety and Security.
The three plaintiffs were travelling in a motor vehicle on the N8 national road between ThabaNchu and Bloemfontein and stumbled upon an armed robbery involving a cash-in-transit vehicle. During the robbery shots were fired by the robbers at the vehicle in which the plaintiffs were travelling.
The plaintiffs sued the Minister of Safety & Security for damages of R776 000. They claimed that the Minister was responsible for the maintenance of national security and the protection of the rights of civilians, including their right to freedom from violence.
The court dismissed the claim.
“The primary public duty of the Minister and the police is to maintain law and order. However, the Constitution does not expect the Minister or the police to perform perfectly and to guarantee absolute safety to any member of the State,” explains Mr Strachen.
“Every omission on the part of the police to perform their general public duties does not impose a delictual liability on them. The police service is run by human beings who make mistakes from time to time. To hold the Minister liable under these circumstances would create an unlimited demand for preventative deployment of the limited police resources,” he concludes.

Copyright © Insurance Times and Investments® Vol:17.1 1st February, 2004
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