|
''Minister of Police v Rabie''〔1986 (1) SA 117 (A).〕 is an important case in the South African law of delict. It was heard in the Appellate Division on September 3, 1984, with judgment handed down on September 27, 1985. The presiding officers were Jansen JA, Joubert JA, Cillié JA, Van Heerden JA and Vivier AJA. The appellant was represented by the State Attorney, Johannesburg. The respondent's attorneys were Mather & Sim, Johannesburg, and McIntyre & Van der Post, Bloemfontein. The central issue was the extent of the liability of the Minister of Police for wrongful acts committed by a policeman. In an appeal by the Minister of Police against an award of damages by the court ''a quo'', it was contended that the sergeant's conduct had been unrelated to his police work. The Appellate Division dismissed the appeal, referring to the proposition that a master (in this instance, the State) who does his work by the hand of a servant (in this instance, the sergeant) creates a risk of harm to others if the servant should prove to be negligent or inefficient or untrustworthy. The sergeant's conduct, on the facts, had fallen within the purview of the risk created by State in employing him, and it was evident to the court that the sergeant's employment was conducive to the wrongs he committed. The State, therefore, was found to be vicariously liable for those wrongs. The case is cited most often for the following passage: It seems clear that an act done by a servant solely for his own interests and purposes, although occasioned by his employment, may fall outside the course or scope of his employment, and that in deciding whether an act by the servant does so fall, some reference is to be made to the servant's intention.〔''Estate Van der Byl v Swanepoel'' 1927 AD 141 at 150.〕 The test is in this regard subjective. On the other hand, if there is nevertheless a sufficiently close link between the servant's acts for his own interests and purposes and the business of his master, the master may yet be liable. This is an objective test. This test, although frequently applied, "has not always been followed."〔''K v Minister of Safety and Security'' 2005 (6) SA 419 (CC) at para 33.〕 In ''K v Minister of Safety and Security'',〔2005 (3) SA 179 (SCA).〕 for example, the Supreme Court of Appeal formulated the test somewhat differently, saying that the question to be asked is whether the deviation is of such a degree that it can still be said the employee is exercising the functions to which he was appointed or carrying out some instruction of the employer. When ''K v Minister of Safety and Security'' went before the Constitution Court, O'Regan complained that "variations of the () test have proliferated, and have resulted in uncertainty,"〔Para 33.〕 and sought to remove this uncertainty by applying the test and holding its objective element, approached with the spirit, purport and objects of the Constitution in mind, to be sufficiently flexible to incorporate constitutional as well as other norms. It required the court applying it to articulate its reasoning for its conclusions as to whether there was a sufficient connection between the wrongful conduct and the employment. Thus developed, O'Regan J held, the application of the test was not at odds with the constitutional order.〔Paras 44–45.〕 == Facts == About thirty minutes into New Year's Day 1981, André Rabie, the respondent in this matter, was stopped by one Albertus Arnoldus Van der Westhuizen, a sergeant employed in the South African Police Force as a mechanic to repair police vehicles, who accused him of attempting to break into a CNA store. The sergeant was at the relevant time off duty, in plain clothes, on the scene in his private vehicle and in pursuance of his own interests. Although he identified himself to Rabie, and purported and intended to act, as a policeman, he was in fact actuated only by malice. Van der Westhuizen proceeded to assault, arrest and detain Rabie in prison. Rabie was duly prosecuted but ultimately acquitted. Van der Westhuizen's actions were found by the court to be totally self-serving and ''mala fide''. Rabie instituted and later succeeded in an action for damages based on section 1 of the State Liability Act.〔Act 20 of 1957.〕 In the Witwatersrand Local Division, Goldstone J held the Minister of Police and Van der Westhuizen to be jointly and severally liable. The former appealed. 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Minister of Police v Rabie」の詳細全文を読む スポンサード リンク
|