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State liability for police action with specific reference to Minister of Police v Rabie 1986 (1) SA 117 (A)Negota, Khakhathi Samuel 02 1900 (has links)
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)
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State liability for police action with specific reference to Minister of Police v Rabie 1986 (1) SA 117 (A)Negota, Khakhathi Samuel 02 1900 (has links)
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)
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Tenuitvoerlegging van hofbevele teen die StaatWessels, Louis 03 1900 (has links)
Thesis (LLM (Public Law))--University of Stellenbosch, 2006. / A worrying recent trend is the failure of national government and some provincial governments to comply with court orders. The prohibition on execution of court orders against the state (as contained in section 3 of the State Liabilities Act) has left judgement creditors in these cases without an effective remedy for execution. In contrast, in the absence of a provision prohibiting execution of judgement debt against local governments, creditors of such governments are able to attach all the assets of local governments in execution of such debt. This has resulted in these local governments being unable to fulfil their constitutional obligation to provide basic services. This study investigates the South African rules in respect of the execution of court orders against the state with the aim of proposing a solution for the above problems.
First of all, the historical and ideological origins of section 3 are set out. Thereafter, the courts’ practical interpretation of section 3 is investigated. From the above inquiry it becomes apparent that, at present, section 3 prohibits all steps towards execution of judgement debt against both the national government and provincial governments. As against this, local governments are not protected by section 3 and as such, court orders (except in certain exceptional instances) may freely be executed against local governments.
The constitutionality of this state of affairs is considered next. It is argued that section 3 is incompatible with the doctrines of the rule of law, the supremacy of the Constitution and the separation of powers. It is also submitted that section 3 is an unjustifiable limitation of sections 9 and 34 of the Constitution, in addition to being contrary to sections 165, 173 and 195(f) of the Constitution. In order to achieve a constitutionally acceptable approach to execution of court orders against the state, and as a consequence of the above findings, it is recommended that section 3 should be amended to (a) make it clear that the state is obliged to comply with court orders, (b) to ensure that creditors have effective means of executing judgement debt against the state and (c) to ensure that the government is not rendered impotent by such execution procedures.
Thereafter, international approaches to execution of court orders against the state are investigated. These approaches are then measured against the above-mentioned guidelines for achieving a constitutionally acceptable dispensation for execution of court orders so as to evaluate the suitability of such remedies for South African law. In the light of this discussion, it is proposed that effective remedies for execution of judgement debt against the state should be made available. It is proposed that: (a) orders ad factum praestandum should be enforceable by contempt of court proceedings, (b) orders ad pecuniam solvendam should be enforceable by means of attachment of state assets for purposes of execution (suggestions are also made to counter the disruptive effect of this remedy) and (c) that courts should also be able to issue declaratory orders that an order of court has been disobeyed by the state.
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