This study sought to make a detailed discussion of state liability for police action with specific reference to the case of Minister of Police v Rabie 1986 (1) SA 117 (A). The historical development of state liability was traced from Roman-Dutch Law, through English Law up to and including South African Law. The major part of this work has been devoted to an indepth discussion of the case of Minister of Police v Rabie 1986 (1) S.A. 117 (A), which is the modern locus classicus on state liability for police action in South Africa. In this case the risk principle appears to have been expressly incorporated into South African law. This is the principle which postulates that the injured party should be compensated even if there was no fault on the part of the wrongdoer. During the course of this study a brief discussion of case law that followed the Rabie decision was also made. The risk principle adopted in the Rabie case was rejected and subjected to severe criticism, These decisions suggested the application of the traditional standard test which places emphasis on the question of whether the policeman's acts were done within the course and scope of his employment. The case of Minister of Law and Order v Ngobo 1992 (4) SA 822 (A) was even bold enough to reject the principle on the basis that it is controversial and untried. The drastic inroad made by certain sections of the Constitution of the Republic of South Africa Act 200 of 1993 into this field of study was also acknowledged. It was submitted that in the light of this new law, the members of the police force as protectors of individual rights will in future have to be carefully chosen, screened, trained and constantly supervised in order to minimise the number of claims against the state based on damages. It was finally accepted that in so far as the test for vicarious liability is concerned, the Appellate Division in Ngobo 's case has, by reverting to the application of the traditional standard test, overruled its previous decision in the Rabie case. It was submitted that an uncertainty in the law has been created by these conflicting decisions and legislative intervention is therefore warranted. / Criminal & Procedural Law / LL. M. (Administrative Law)

This study sought to make a detailed discussion of state liability for police action with specific reference to the case of Minister of Police v Rabie 1986 (1) SA 117 (A). The historical development of state liability was traced from Roman-Dutch Law, through English Law up to and including South African Law. The major part of this work has been devoted to an indepth discussion of the case of Minister of Police v Rabie 1986 (1) S.A. 117 (A), which is the modern locus classicus on state liability for police action in South Africa. In this case the risk principle appears to have been expressly incorporated into South African law. This is the principle which postulates that the injured party should be compensated even if there was no fault on the part of the wrongdoer. During the course of this study a brief discussion of case law that followed the Rabie decision was also made. The risk principle adopted in the Rabie case was rejected and subjected to severe criticism, These decisions suggested the application of the traditional standard test which places emphasis on the question of whether the policeman's acts were done within the course and scope of his employment. The case of Minister of Law and Order v Ngobo 1992 (4) SA 822 (A) was even bold enough to reject the principle on the basis that it is controversial and untried. The drastic inroad made by certain sections of the Constitution of the Republic of South Africa Act 200 of 1993 into this field of study was also acknowledged. It was submitted that in the light of this new law, the members of the police force as protectors of individual rights will in future have to be carefully chosen, screened, trained and constantly supervised in order to minimise the number of claims against the state based on damages. It was finally accepted that in so far as the test for vicarious liability is concerned, the Appellate Division in Ngobo 's case has, by reverting to the application of the traditional standard test, overruled its previous decision in the Rabie case. It was submitted that an uncertainty in the law has been created by these conflicting decisions and legislative intervention is therefore warranted. / Criminal and Procedural Law / LL. M. (Administrative Law)

Text in Afrikaans / Infringement, by the executive, of the right to privacy of the individual is an everyday occurrence. Section 14 of the Constitution, Act 108 of 1996 protects the right to privacy. The Criminal Procedure Act, Act 51 of 1977 authorises the police service, to search for and seize articles, to enter premises, ascertain bodily features of accused and to employ traps and undercover operations. On the one hand the Criminal Procedure Act authorises the police to infringe the privacy of the individual but on the other hand it guarantees the privacy of the individual. The provisions of the Criminal Procedure Act are qualified by the Constitution, specifically by section 36 and 35(5). The authorisation of a police officer should be obtained before a person could be arrested without a warrant, which should, in any event, be the last resort. The written permission of an officer must be obtained prior to the making of an application for a warrant to a magistrate. A police officer should be prohibited from issuing a search warrant, as the general perception of the public is that members of the police may not be sufficiently independent. The exercising of magistrates' discretion regarding the decision as to whether a search warrant should be issued or not should be extended. A search warrant should comply with strict requirements as to who may execute the warrant, when, how and when the warrant will become invalid. Search and seizure without a warrant should not be allowed at all, except in circumstances where there is an immediate threat or danger to a person, property or the public safety. In cases of urgency, it should be made possible to obtain the telephonic permission from a magistrate to search property. Where necessary to ascertain the bodily features of an accused through surgery, a compulsory application in terms of section 37(3) should be made to the court for authorisation, irrespective of whether the accused consents to the surgery or not. More importance should be attached to the rights of the individual and the powers of the executive should be limited. / Jurisprudence / LL.D

Text in Afrikaans / Infringement, by the executive, of the right to privacy of the individual is an everyday occurrence. Section 14 of the Constitution, Act 108 of 1996 protects the right to privacy. The Criminal Procedure Act, Act 51 of 1977 authorises the police service, to search for and seize articles, to enter premises, ascertain bodily features of accused and to employ traps and undercover operations. On the one hand the Criminal Procedure Act authorises the police to infringe the privacy of the individual but on the other hand it guarantees the privacy of the individual. The provisions of the Criminal Procedure Act are qualified by the Constitution, specifically by section 36 and 35(5). The authorisation of a police officer should be obtained before a person could be arrested without a warrant, which should, in any event, be the last resort. The written permission of an officer must be obtained prior to the making of an application for a warrant to a magistrate. A police officer should be prohibited from issuing a search warrant, as the general perception of the public is that members of the police may not be sufficiently independent. The exercising of magistrates' discretion regarding the decision as to whether a search warrant should be issued or not should be extended. A search warrant should comply with strict requirements as to who may execute the warrant, when, how and when the warrant will become invalid. Search and seizure without a warrant should not be allowed at all, except in circumstances where there is an immediate threat or danger to a person, property or the public safety. In cases of urgency, it should be made possible to obtain the telephonic permission from a magistrate to search property. Where necessary to ascertain the bodily features of an accused through surgery, a compulsory application in terms of section 37(3) should be made to the court for authorisation, irrespective of whether the accused consents to the surgery or not. More importance should be attached to the rights of the individual and the powers of the executive should be limited. / Jurisprudence / LL.D