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Liability of the state and public authorities in Israel and South Africa.

III. SOUTH AFRICA

A. METHODOLOGY: A MIXED SYSTEM PROVIDING SCOPE FOR INNOVATION

As noted in the introduction, the South African law of delict (tort) is the product of a common law and civil law mix. The South African system of private law and delict (tort) is imbued with some remarkable syncretic features. In addition to drawing from both non-codified Roman-Dutch law (its civil law source) and English common law, since the advent of democracy in 1994, it has been shaped further by a Constitution with an extensive Bill of Rights.

Liability for patrimonial harm is mostly determined by the rules of the developed Aquilian action, which derived from Roman law and migrated into South Africa with pre-codification seventeenth century Dutch law. (118) Just as the tort of negligence dominates English tort law, the Aquilian action dominates liability for patrimonial harm in South Africa, just as it did in countries like the Netherlands, Germany, and France prior to codification, when the Roman usus modernus developed Aquilian liability into a de facto general form of tort liability (a de facto general clause, in codification terminology). (119) Aquilian liability, with its open-ended norms, has proved to be a flexible instrument for innovation.

During the nineteenth and twentieth centuries, English principles governing the tort liability of public bodies and the Crown came to displace the rather underdeveloped Roman-Dutch law on this topic. (120) As in England, liability of local authorities has been treated mostly as a form of direct liability, whereas state liability has mostly been treated as vicarious liability. (121) Local authorities' liability was, for most of the nineteenth and twentieth centuries, shaped on the common law model with remnants of the distinction between misfeasance and nonfeasance underlying the requirement of prior conduct introducing a new source of danger for liability of public, especially local, authorities. (122)

The potential liability of local authorities for omissions widened considerably when the courts discarded the so-called "prior conduct" doctrine, the view that liability of public authorities for an omission can only be imposed where the prior conduct of the defendant had positively created a risk of harm or a new source of danger. (123) In the last quarter of the twentieth century, with the jettisoning of the requirement of prior conduct, came the development of a unitary concept of tort liability of the state and public authorities, for both commissions and omissions, built on the civilian-influenced concept of "wrongfulness." (124)

B. SOCIETAL FACTORS INFLUENCING JUDICIAL REASONING: WIDENING PUBLIC-AUTHORITY LIABILITY IN SOUTH AFRICA

The development of public-authority liability in South Africa has also been influenced by certain local trends. High levels of crime, including corruption, (125) and the absence of a victim compensation scheme have led to a number of cases where the victims of crime have successfully claimed damages from the state based on the unlawful failure of the police to provide protection. (126) In the area of state liability for police actions or omissions, the Constitution has been an important innovating force. In a number of cases, victims of violent crime have instituted actions against the state for the failure, mostly by the police, to hold dangerous criminals in custody, to provide effective protection against crime, or to properly exercise their duties in respect of firearm licensing.

High levels of administrative incompetence in central, provincial, and local government have led to a number of cases where persons harmed by maladministration have sought to recover damages in delict on the basis of the constitutional guarantee of just administrative action, (127) which has been given detailed content in legislation. (128) Thus, negligent maladministration has led to a large number of cases against public bodies at all levels of government. The Constitutional Court has affirmed that "(i)n our constitutional dispensation, every failure of administrative justice amounts to a breach of a constitutional duty." (129) Such a breach might, but will not necessarily, give rise to delictual liability. A number of cases dealing with irregular conduct of tender procedures illustrate the development in this area of public liability. (130)

C. WRONGFULNESS

The civilian-influenced concept of wrongfulness or unlawfulness in the South African law of delict has been an important basis for judicial reasoning toward wider liability of public authorities. Wrongfulness is an open-ended concept, turning on a broad policy judgment, which can take account of the special circumstances of public defendants and also the new wide-ranging duties imposed by the Constitution on the state and public bodies. (131) With all the other elements of liability (conduct, causation, harm, and fault) proved or assumed to be present, wrongfulness involves a further value judgment on whether the affected interest of the plaintiff deserves protection from the defendant's action or inaction, such that the burden of proof of damage should be shifted from plaintiff to defendant. (132) Wrongfulness is thus essentially concerned with the scope of protection afforded to various rights and interests, the scope of responsibility to act, and the overall policy considerations relating to the question whether the law of delict should intervene. (133)

In most systems of tort there are traces of the concept of wrongfulness but there is no uniformity in the use of the expression. (134) In a wide sense, the expression indicates a combination of reprehensible conduct and the infringement of an interest that is deemed worthy of legal protection, but this description is so wide that it can be taken to refer to the concept of delictual liability generally. (135) Wrongfulness is closely linked to the central idea of tort law, as formulated by Prosser: "So far as there is one central idea, it would seem that it is that liability must be based upon conduct which is socially unreasonable. The common thread woven into all torts is the idea of unreasonable interference with the interests of others." (136) The concept of wrongfulness in the South African law of delict has its roots in both English tort law and civil law.

In English tort law there is no neat catalogue of protected rights and interests, and in both the required standard of conduct and the scope of protection are integrated into the concept of a duty of care. (137) It has been said that a broad idea of wrongfulness is reconcilable with the English law of tort, at the highest level of abstraction, if only because there are situations where the causing of damage is not actionable. (138) The primary mechanism to control the ambit of tort liability is the duty of care. However, the foreseeability-based duty of care (as famously formulated by Lord Atkin in Donaghue v. Stevenson (139)) is not a conclusive test of liability, because it does not take account of instances where liability for foreseeable harm is sometimes excluded or restricted, including cases of pure economic loss, justification on grounds such as defense or consent, and omission in which the law does not recognize a general duty to act positively to ward off foreseeable danger from another person. (140)

In these instances, the courts employ, in addition to foreseeability, notions of "proximity," "neighbourhood," "fairness," "assumption of responsibility," "reliance," and "special relationship" to control the scope of liability for negligence. (141) These concepts have been described as "little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognizes pragmatically as giving rise to a duty of care of a given scope." (142) The courts have shown an increased willingness to bring policy questions into the open and, even if it is found that injury was a foreseeable result of the defendant's negligence, the existence of a duty of care may be denied on the basis that policy concerns necessitate a restrictive approach in determining the ambit of "neighbourhood" for purposes of the duty of care. (143)

The open-ended concept of wrongfulness in the South African law of delict, turning on reasonableness and societal norms, resembles aspects of the concept of wrongfulness (Rechtswidrigkeit) in German law. Wrongfulness for the purposes of [section] 823 I of the German Civil Code (BGB) essentially turns on the infringement of the interests that are specifically protected by that section, such as life, physical integrity, health, property, and other similar rights (not including pure economic loss). These interests are said to be "absolutely protected interests," and the notion of wrongfulness is said to be "outcome-related," an approach to wrongfulness known as Erfolgsunrechtslehre. (144) However, in cases of indirect infringement of rights and omission, the notion of wrongfulness is said to involve an evaluation of conduct in terms of certain societal norms, an approach to wrongfulness known as Verhaltensunrechtslehre. (145)

One of the most fertile sources of this development in German law was the idea that a preceding dangerous or potentially dangerous activity or state of affairs gives rise to a duty of care. From this idea, the courts developed the Verkehrssicherungspflichten, or societal duties. (146) These duties indicate that the law of delict requires a value or policy judgment on the existence of a legal duty not to cause or to prevent harm, concerning the range of relationships and interests that will be protected against careless interference and the range of persons who could be held liable for a harmful result. Whether this value judgment is made in the context of wrongfulness or negligence is a matter of structure.

In South African law, delictual liability requires not only negligence but also wrongfulness, which implies a duty not to cause or to prevent harm. (147) This duty is based on considerations of reasonableness and public policy, often involving a question of proportionality. (148) Typical factors regarded as indicating such a duty in particular situations include: proportionality of the risk of harm and the cost of prevention; control over a dangerous object or situation; awareness of danger; prior conduct creating danger; and a relationship imposing responsibility. (149)

The case of Administrateur, Transvaal v. Van der Merwe (150) is illustrative of the process or reasoning involved. Liability for an omission was in issue, and the court determined the existence of a legal duty to prevent harm by means of an enquiry into the proportionality of the risk of harm and the cost of prevention. The question was whether provincial authorities had a duty in respect of a minor road to make firebreaks or to take other precautionary measures against fires breaking out and spreading to adjoining land. The court held that to determine whether a positive act or an omission is such that it can be branded as unlawful, the different interests of the parties, their relationship with one another, and the social consequences of imposing liability in the kind of case in question, inter alia, should be weighed.

Factors that play an important role in that process are, inter alia, the probable or possible extent of the prejudice to others, the degree of risk of such prejudice eventuating, the interests that the defendant and the community, or both, have in the act or omission in issue, whether there were reasonably practicable measures available to the defendant to avoid the prejudice, what the chances were of the measures being successful, and whether the cost involved in taking such measures was reasonably proportional to the damage which the plaintiff could suffer. Affordability and proportionality between the potential damage and the potential cost of prevention should be brought into account in deciding the question of wrongfulness.

On application of this proportionality test, the court found that the control and supervision of the Administrator over all public roads was only of a permissive nature and that the applicable legislation did not impose any obligations on the Administrator to make firebreaks or take other precautionary measures against veld fires breaking out and spreading to adjoining land. Given the nature of the road in question, the fact that it was seldom used, and the cost of preventative measures, the mere fact that the Administrator exercised control and supervision over all public roads did not in itself create a duty for purposes of delictual liability. In the absence of a positive danger-creating act, the mere control of property and the failure to exercise such control with resultant prejudice to another is not, per se, unlawful. The crucial issue is whether the precautionary measures that the controller should, according to the aggrieved party, have taken to prevent the prejudice could have been reasonably and practicably required in the circumstances. The underlying philosophy is that a consequence is only wrongful if, in the light of all the circumstances, the defendant can reasonably be expected to act.

In a line of cases prior to the decision of the Appellate Division in Minister van Polisie v. Ewels, (151) the courts adhered to the view that liability of public authorities for an omission can only be imposed where the prior conduct of the defendant had created a risk of harm or a new source of danger, and the defendant then failed to prevent the harm from occurring. The Appellate Division first adopted this view in 1912 in Halliwell v. Johannesburg Municipality. (152) The Halliwell case and similar subsequent cases dealt with the liability of a local authority for injury to a person using a public road or other amenity (hence the reference to these cases as "municipality cases"). The judgments in these cases often involved subtle distinctions between situations where the defendant simply failed to prevent harm and where such failure was preceded by the creation of a risk of harm or the introduction of a new source of danger.

This "prior conduct" approach to liability for an omission held sway for more than four decades, in spite of criticism in certain judgments. (153) Eventually the Appellate Division broke away from this approach in the leading case of Minister van Polisie v. Ewels, (154) where it held that there can be liability in delict for a mere omission that was not preceded by conduct that created a risk of harm or introduced a new source of danger. In Minister van Polisie, the court imposed liability in a situation where the plaintiff was assaulted by an off-duty policeman in a police station in the presence of a more senior policeman who failed to prevent the assault.

The essential question is whether a legal duty existed to prevent harm to others, on the basis of reasonableness and public policy. In terms of the wide and evaluative criteria used by the courts in this regard, a legal duty will be recognized where the failure to prevent harm not only evokes moral indignation, but is regarded as so unreasonable, according to the boni mores, or legal convictions of the community, that it should be regarded as unlawful, so that liability should be imposed for the loss suffered. (155) In addition to these general criteria, the courts take into account policy considerations indicating whether the law of delict should intervene, including the social or economic consequences of imposing liability, the availability of alternative remedies, the need for accountability of public bodies or officials, relevant constitutional or other statutory rights and duties, and a typology of factual circumstances that indicate a duty not to cause or to prevent harm in the particular situation. The decision of the Appellate Division in the Ewels case has been of great significance, not only in respect of liability for omissions, but also in respect of the criteria for assessment of wrongfulness generally. (156)

The "prior conduct" approach to liability of local authorities for omissions was finally discarded in Cape Town Municipality v. Bakkerud, (157) where the general criterion of reasonableness, involving the policy-based standard of boni mores was accepted. Specific content is given to this general criterion by taking account of a typology of factual considerations, such as the extent of the danger, the period of time for which it existed, the resources of the public authority, and prior warning. The municipality of Cape Town was held liable for failing to repair holes in a pavement that caused the plaintiff to fall and incur injury.

Wrongfulness thus requires a value judgment, but the court is not absolved from the need for an open and structured process of reasoning, with reference, among other things, to the specific rights and interests involved, the relationship between the parties, relevant provisions of the Constitution and of other legislation, and relevant policy considerations. (158) The reasoning of the courts in this regard is reducible to the following more specific and often interrelated factors: (1) policy considerations indicating whether the law of delict should intervene in respect of the type of harm-causing including, among other things, (a) the social or economic consequences of imposing liability, in particular, potential indeterminate liability ("opening the floodgates"), (b) the availability of alternative remedies, and (c) the need for accountability of public bodies or officials; (2) consideration of relevant constitutional or other statutory rights and duties, including, among other things, (a) the right to freedom and security of the person, (b) the right to privacy, (c) accountability of public officials, and (d) the right to just administrative action; (3) a typology of factual circumstances that indicate a duty not to cause or to prevent harm in the particular situation, including among other things, (a) the proportionality of the risk of harm and the cost of prevention, (b) control over a dangerous object or situation, (c) awareness of danger, (d) prior conduct creating danger, (e) a relationship imposing responsibility, and (1) professional knowledge; (4) the nature of the defendant's conduct, with harm-causing by positive conduct generally more likely to be considered unlawful than harm-causing by omission; (5) the nature of the defendant's fault with intentional harm-causing more likely to be considered unlawful than negligent harm-causing; and (6) the nature of the interest sought to be protected. In considering the nature of the interest sought to be protected, causing physical injury and damage to property is considered to be prima facie unlawful, whereas the wrongfulness of nuisance and damage to reputation, for example, is often judged in balance with a conflicting interest of the defendant.

Wrongfulness has been an important basis for judicial reasoning toward wider liability of public authorities. Considerations of reasonableness and policy have provided scope for considerable extension of state liability for omissions. The liability of local authorities for omissions was extended when the courts discarded the view that liability of public authorities for an omission can only be imposed where the prior conduct of the defendant had positively created a risk of harm or a new source of danger. The assessment of proportionality is often central to judicial reasoning on wrongfulness. Cases illustrating these trends, referred to above, deal almost exclusively with property damage, physical injury, or death.

D. IMPACT OF THE CONSTITUTION

The impact of the Constitution on private law in South Africa has facilitated judicial innovation in widening of liability of the state and public authorities. (159) The development of the generalized tort liability for both commissions and omissions, built around the civilian-influenced concept of wrongfulness, facilitated the impact of the Constitution on the law of delict in this area. This has been a much more extensive impact than the modest effects of the UK Human Rights Act in the same area. (160) The concept of wrongfulness has been prominent, as one of the "open-ended norms False ... through which human rights may be filtered in legal development." (161)

The values encapsulated in the Constitution's Bill of Rights may be brought to bear indirectly in interpreting or filling out private law norms, a feature of South African constitutional law that shows the influence of contemporary civilian legal systems, notably that of Germany. (162) The application of the Bill of Rights in the law of delict, as in other areas of private law, has had an impact on the style of judicial reasoning, inasmuch as the courts more often engage with normative issues rather than relying on "authority reasons" in a formalistic way. (163)

The general or open-ended principles of law of delict, in particular the element of wrongfulness, are now informed by applicable constitutional values. The Bill of Rights in the South African Constitution obliges the courts to promote the spirit, purpose, and objects of the Bill of Rights when applying and, where necessary, developing the common law, (164) so as to give effect to the Bill of Rights. (165) The Constitution provides for the infusion into the common law of "the values that underlie an open and democratic society based on human dignity, equality and freedom," (166) and this infusion assists in giving content to and shaping the general or open-ended principles of the law of delict.

Section 8(2) of the Constitution provides that certain constitutional rights apply directly to private persons or entities. According to this Section, a provision of the Bill of Rights--a right--"binds a natural or a juristic person," but only "if and to the extent that it is applicable" to a natural or juristic person, "taking into account the nature of the right and the nature of any duty imposed by the right." The courts will be required to decide in an ad hoc manner whether or not a particular constitutional right binds a private natural or juristic person. For example, the formulation of the provisions dealing with the right to just administrative action (167) and the rights of arrested persons (168) indicate that they can probably only apply against the state, whereas rights such as the right to security of the person, (169) equality, (170) and access to information (171) imply that obligations might be imposed on private persons.

Section 8(3) of the Constitution applies only where a court seeks to apply a provision of the Bill of Rights to a natural or juristic person in terms of [section] 8(2). Section 8(3) contains two directives to a court in such a case. First, to give effect to a constitutional right that binds a private person, a court is required to apply or, if necessary, develop the common law to the extent that legislation fails to give effect to that right. This provision is reinforced by [section] 39(2) of the Constitution, which provides that when a court develops the common law, it must "promote the spirit, purport and objects of the Bill of Rights." Second, when a court applies a constitutional right to a private person in terms of [section] 8(2), it is empowered to develop rules of the common law so as to limit such a right, provided that the limitation is in accordance with [section] 36(1) of the Constitution. The effect of the impact of the Constitution on the law of delict in the area of state and public-authority liability is illustrated by a few prominent cases.

In Carmichele v. Minister of Safety and Security, (172) the plaintiff was the victim of a violent attack by a person with a prior conviction for violence and who was released on his own recognizance while awaiting trial on a new charge that also involved violence against women. The plaintiff alleged that the state, through the investigating police officers and the prosecutors, had a legal duty to protect her, which it unlawfully failed to do by not opposing the release of the accused at the bail hearing. The Constitutional Court held that in applying the pre-constitutional common-law test for wrongfulness for the purposes of delictual liability, the courts must give regard to the constitutional imperative to develop the common law if necessary, to give effect to constitutional rights, and to reflect the spirit, purport, and objects of the Bill of Rights. (173)

The Court relied on the German notion of a constitution as an objective, normative value system, suffusing all areas of law. (174) In particular, the Court took into account the record of the accused, the knowledge that the police had of his threatening conduct, and the right of women and other vulnerable groups in particular to have their safety and security protected in terms of [section] 12(l)(c) of the Constitution, a section providing that everyone has right to freedom from violence. The Court in this case did not undertake the exercise of developing the common law itself, but indicated different ways of developing the common law to give effect to the constitutional rights and values, in particular through the concept of wrongfulness. (175) The Court held that the trial court should not have granted an order for absolution from the instance and remitted the case to the High Court for the trial to proceed.

Eventually, the Supreme Court of Appeal imposed liability on the state, (176) taking into account the following: (1) that the state had a positive obligation through the police and prosecutors to take preventive operational measures (by opposing bail for a previously convicted accused) to protect individuals against threats to life; (2) that the plaintiff was pre-eminently a person who required the State's protection; (3) that the circumstances of the threat posed by the accused person to the plaintiff were known to the police and prosecutors; and (4) that in terms of the constitutional norm of accountability, the State was liable for the failure to perform the duties imposed upon it by the Constitution, unless the State could show that there was compelling reason to deviate from that norm and that there was no suggestion that the recognition of a legal duty under the circumstances had the potential to disrupt the efficient functioning of the police or would necessarily require the provision of additional resources. On the contrary, the evidence suggested that recognition of a legal duty in such circumstances would enhance police and prosecutorial efficiency.

Minister of Safety & Security v. Van Duivenboden (177) provides another important example of the method of reasoning employed when the Constitution becomes the source of rights and duties in private law. The police failed to deprive a person of his firearms and licence, although they knew that he was prone to violence when drunk, having been called out on previous occasions when he threatened his family while drunk. A neighbor, who was injured when attempting to assist the family of the drunken, gun-wielding aggressor (who then shot and killed his wife and daughter), successfully sued the state for damages. The police could have taken steps under firearm legislation to deprive the killer of his firearm. The reasoning of the court illustrates the impact of the Constitution on the concept of wrongfulness. The majority of the court emphasized (178) that the very existence of the State's constitutional duty to act in protection of the rights in the Bill of Rights necessarily implies the norm of public accountability and pointed out that [section] 41(1) of the Constitution expressly provides that all spheres of government and all organs of State within such sphere must provide government that is not only effective, transparent, and coherent, but also accountable. The court held (179) that this norm must necessarily assume an important role in determining whether a legal duty ought to be recognized in any particular case and that police officers who were in possession of information that indicated the unfitness of a person to possess firearms owed a legal duty to members of the public to take reasonable steps to act on that information to prevent harm.

It is interesting to note that the Supreme Court later turned down a claim for loss of parental support (economic loss), based on the same facts. In Brooks v. Minister of Safety & Security, (180) the court refused to extend the action for loss of support to the situation where the breadwinner was rendered incapable of providing support to his son because he was imprisoned for the murder of his wife and daughter. The son alleged that the police had negligently and wrongfully failed to deprive his father of his firearms, despite their knowledge of repeated incidents where Brooks had threatened his family when under the influence of liquor. However, the court refused to extend the action for loss of support to the situation where the breadwinner was still alive and had rendered himself unable to provide support by committing murder and being sentenced to lengthy imprisonment.

In Van Eeden v. Minister of Safety & Security, (181) the police allowed a prisoner who had a history of violent crime to escape from their custody, resulting in a further assault on the plaintiff. The court held that the general manner in which the police performed their functions relating to the detection of crime and the apprehension of criminals was not in issue. In respect to such matters, public policy may well require that police should have a wide discretion, with which the courts should not interfere. However, the court observed that the recognition of a legal duty in the case would neither disrupt the efficient functioning of the police, require additional resources, nor inhibit the proper performance by the police of their primary functions or lead to defensive policing. The court was also satisfied that the imposition of liability on the State in the case would not open the floodgates of litigation and result in limitless liability of public authorities and functionaries because the requirements for establishing negligence and causation provide sufficient practical scope for limiting liability.

It appears from the cases discussed above that the Constitution has provided considerable scope for judicial innovation in widening the liability of the state and public authorities. In essence, the Constitution conceptualizes the state as the bearer of special responsibilities and underscores the state's accountability, particularly in respect to the safety and security of persons. This constitutional state concept has enabled the courts to impose wider liability for systemic or organizational breaches of duty.

E. PURE ECONOMIC LOSS

The cases referred to above illustrate that the courts are willing to extend the liability of the state on constitutional grounds where the rights to life and security of the person are involved. The courts adopt a more conservative approach where pure economic loss is concerned. The focus of the inquiry in such cases is whether a duty on the part of the state to prevent economic loss is provided for or implied by a statutory provision. (182) The existence of such a statutory duty will be determined according to the normal rules of statutory interpretation, with regard to the intention of the legislature as it appears from the wording of the statutory provision. (183)

In Minister of Law & Order v. Kadir, (184) policemen investigated the scene of an accident caused by a package falling off of a delivery vehicle. The driver of the delivery vehicle drove off without stopping. The policemen failed to obtain the names and addresses of possible witnesses before the witnesses left the scene of the accident. The court held that the policemen did not have a legal duty toward the victim of the accident, who was later unable to institute a civil claim for damages against the unknown driver of the vehicle. The police had a statutory duty in terms of [section] 5 of the Police Act 7 of 1958 to deter crimes, track down criminals, and protect the public against crimes. However, Hefer JA remarked that "[v]iewing the matter objectively, society will take account of the fact that that the function of the police relate in terms of the Act to criminal matters and were not designed for the purpose of assisting civil litigants." (185)

In Knop v. Johannesburg City Council, (186) a local authority granted an application for subdivision of a property in error and then later informed the applicant that the approval could not stand, because it was in conflict with an existing town planning scheme. The applicant claimed damages for losses incurred as a result of the delayed development of the property. The court held that the local authority charged with implementing zoning provisions did not have a duty to prevent economic loss to the plaintiff. The court explained that the legislative intention is to be ascertained with reference to the nature of the powers conferred, the nature of the duties involved in their exercise, the procedures prescribed for their exercise and for persons aggrieved to obtain redress, and the objects sought to be achieved by the legislature. The court also observed that the focus is on the content and purpose of the statutory duty and the implications of breach of the duty, rather than on the infringement of the plaintiffs rights. Moreover, the court observed that the mere fact that the defendant acted in breach of a statutory duty is not conclusive in respect of wrongfulness for the purposes of delictual liability. The court found that where it is alleged that the breach of a statutory duty caused harm to the plaintiff, it must be determined, according to the rules of statutory interpretation and with regard to the intention of the legislature and the wording and purpose of the statutory provision, whether the breach of duty could give rise to a delictual remedy. (187)

The court in the Knop case took into account as a matter of policy that there was an administrative procedure for an aggrieved person to obtain redress in the event of refusal of his application and that potential liability in delict could unduly hamper the local authority in carrying out its statutory duty to consider and dispose of such applications expeditiously. The application in this case was defective because it did not comply with the existing town planning scheme, and it was for the applicant to ensure such compliance. In the circumstances, it would be contrary to the objective criterion of reasonableness to hold the local authority liable for damages and would also offend the legal convictions of the community. (188)

In a number of cases dealing with irregular tender procedures, the courts have been reluctant to impose liability for losses suffered by either unsuccessful or successful tenderers. In Steenkamp NO v. The Provincial Tender Board of the Eastern Cape, (189) the Constitutional Court refused to recognize a legal duty on the part of the tender board toward a successful tenderer whose tender award was later set aside because of negligence in the process of awarding the tender. The Court took into account, among other things, whether imposing liability for damages would have a "chilling effect" on the performance of administrative or statutory functions by members of the board. The factors relevant to the assessment of wrongfulness in tender cases were summarized as follows:
   Our courts--Faircape, Knop, Du Plessis and Duivenboden- and
   courts in other common law jurisdictions readily
   recognise that factors that go to wrongfulness would include
   whether the operative statute anticipates, directly or by
   inference, compensation of damages for the aggrieved party;
   whether there are alternative remedies such as an interdict,
   review or appeal; whether the object of the statutory scheme
   is mainly to protect individuals or advance public good;
   whether the statutory power conferred grants the public
   functionary a discretion in decision-making; whether an
   imposition of liability for damages is likely to have a "chilling
   effect" on performance of administrative or statutory
   function; whether the party bearing the loss is the author of
   its misfortune; whether the harm that ensued was
   foreseeable. It should be kept in mind that in the
   determination of wrongfulness foreseeability of harm,
   although ordinarily a standard for negligence, is not
   irrelevant. The ultimate question is whether on a conspectus
   of all relevant facts and considerations, public policy and
   public interest favour holding the conduct unlawful and
   susceptible to a remedy in damages. (190)


In Olitzki Property Holdings v. State Tender Board & Another, (191) another unsuccessful tenderer's claim also failed. The Supreme Court of Appeal held that liability for negligent breach of the State Tender Board Act 86 of 1968 must be interpreted in light of and subject to the (interim) Constitution of the Republic of South Africa Act 200 of 1993. The court explained that liability depends on whether the statute imposes a duty to prevent loss, which must be assessed by applying the criterion of reasonableness, based on considerations of morality and policy, and taking into account legal convictions of community and constitutional norms, values, and principles. It is a question of statutory interpretation, but the answer depends less on a formulaic approach than on a broad assessment of whether it is "just and reasonable" that damages be awarded. The question requires the application of broad considerations of public policy, determined, inter alia, in light of constitutional principles and impact upon them that granting or refusing the remedy will entail.

In the event of fraudulent breach of a statutory duty in awarding a tender, a court is to impose liability. In Minister of Finance & Others v. Gore NO, (192) the court reasoned as follows:
   In the language of the more recent formulations of the
   criterion for wrongfulness: in cases of pure economic loss the
   question will always be whether considerations of public or
   legal policy dictate that delictual liability should be extended
   to loss resulting from the conduct at issue. Thus understood,
   it is hard to think of any reason why the fact, that the loss
   was caused by dishonest (as opposed to bona fide negligent)
   conduct, should be ignored in deciding the question. We do
   not say that dishonest conduct will always be wrongful for
   the purposes of imposing liability, but it is difficult to think of
   an example where it will not be so. (193)


The reasoning of the courts when dealing with breach of a legal duty by a state or other public official typically involves the following questions:

(1) Did a special relationship between the parties give rise to a legal duty to prevent economic loss to the plaintiff? (194) The courts are reluctant to acknowledge a general duty of this kind on the part of the state or a public authority.

(2) What are the legal, social, and economic implications of imposing liability for the infringement? Are other public policy considerations relevant to the case? The courts shy away from imposing liability, for instance, where neither the economic loss nor the number of persons affected are finite and the recognition of liability raises the specter of indeterminate liability to an indeterminate class of persons. (195)

F. LIABILITY OF JUDICIAL OR QUASI-JUDICIAL TRIBUNALS

In Telematrix (Pty) v. Advertising Standards Authority SA, (196) the court held that the Advertising Standards Authority of SA (ASA) did not have a legal duty for purposes of delictual liability toward an advertiser who suffered a loss because of an incorrect decision by one of the ASA organs. The relevant policy consideration is the protection of the independence of persons or bodies entrusted with an adjudicative function that serves the public interest and that imposes on them a duty to act impartially. Such persons or bodies, including the judiciary, arbitrators, and other administrative tribunals, should be enabled to adjudicate fearlessly. The threat of an action for damages could unduly hamper the expeditious consideration and disposal of litigation and disputes. Although both the person harmed and damage suffered as a result of an incorrect decision are foreseeable, the negligent causing of harm is not considered wrongful.

G. EXPANDING VICARIOUS LIABILITY

The vicarious liability of the state and other public authorities for actions or omissions of the police has been substantially extended by the courts over the last few decades through development of common law rules regarding the existence of a sufficiently close connection between the employee's conduct and the business of the employer and with reference to constitutional values. (197)

The "standard test" for determining whether an employee acted within the scope of his or her employment was set out in Minister of Police v. Rabie, (198) where the court held that the State may be liable where an off-duty policeman assaulted an innocent person, and the policeman acted solely in his own interest in a situation occasioned by his or her employment. The test is both subjective, in that the employee's intention is considered, and objective, in that the existence of a sufficiently close link between the employee's act for his or her own purposes and the business of his or her employer may render the employer vicariously liable. An employer is liable for acts that it did not authorize, provided such acts are so connected with acts that it did authorize that they may rightly be regarded as modes, although improper modes, of doing authorized acts. If the employee's act falls outside the work or particular class of work that he or she is employed to do, the employer is not liable.

Whether a person can commit an intentional wrong in the course of employment, so as to render his employer liable, is a vexing question. In Salmond's often-cited formulation, vicarious liability arises when the employee has done "fraudulently that which he was authorized to do honestly," but not when the employee's conduct was insufficiently "connected with the authorized act as to be a mode of doing it." (199) This distinction hinges upon a close scrutiny of the employee's authorized functions, resolving often into a question of "degree." (200) Particular problems arise where employees perform professional services, work independently, and exercise discretion. In such cases, it is not always possible to delineate their exact duties. Nevertheless, the court often applies notion of fraudulent or improper performance of authorized duties.

Clearly intentional wrongdoing does not always remove the employee from the scope of his or her employment, as illustrated by cases on state liability for police transgressions. (201) The state, like other employers, can be liable for intentional misconduct of its employees in certain circumstances. In the case of policemen, the approach of the courts has been to establish whether there is some connection between their misconduct and the performance of police duties. (202)

In K v. Minister of Safety & Security, (203) the Constitutional Court held that the State should be liable for rape committed by on-duty policemen who raped a woman who approached them for assistance late at night. The Court held that both the principles of vicarious liability and their application must conform to the normative framework of the Constitution. On the issue of whether the State should be liable for police rape, the Court found the principles of vicarious liability to be consistent with constitutional norms regarding the duties of the State and the police and the right to personal security. The Court found that, subjectively viewed, the policemen acted in pursuit of their own objectives, but objectively, their conduct was sufficiently linked to their employment as policemen, who were required to protect people from crime, for the State to be held liable.

On breach of duty by the policemen, the Court's reasoning was essentially that the policemen failed in their constitutional duty to protect K from harm and that this was the link between their wrongdoing and their employment. The idea that a breach of a duty imposed by an employer upon its employee can forge a connection between wrongdoing by the employee in breach of that duty and his employment is questionable. What seems to follow from this argument is that the greater the breach by the employee, the closer the connection between the wrongdoing and the employment. (204)

In Minister of Safety & Security v. Luiters, both the Supreme Court of Appeal and the Constitutional Court decided that vicarious liability should be imposed on the State where an off-duty policeman pursued persons who had attempted to rob him and shot an innocent third party. (205) A two-stage test was applied: (1) whether employee's acts were committed solely for employee's purposes; and, if so, (2) whether there was a sufficiently close link between employee's acts and employer's purposes and business. It was held that in pursuing would-be robbers, the policeman had acted in both his own interests and those of the police service. He intended to perform police duties and had effectively placed himself on duty. The fact that the policeman did not adhere to the rules of criminal procedure or police standing orders did not bar liability.

In Minister of Safety & Security v. F, (206) the plaintiff, F, found herself stranded late at night, and an off-duty policeman offered to drive her home. Instead, he drove to a remote spot where he raped her. The distinction between this case and the case involving K is that on this occasion, the policeman was not on duty. The majority of the Supreme Court of Appeal held that this case fails the test for vicarious liability that was articulated in K The finding of liability in K was based on the personal liability of the policemen concerned, and consequently, the vicarious liability of the State for omitting to fulfill their constitutional and statutory police duty. In this case, the policeman had no such police duty. He was not purporting to act as an instrument of the State at the time he committed the crime, and the State was not vicariously liable for his conduct.

Are the outcomes in K and F justifiable? The "close connection" test requires a value judgment on the degree of closeness, but this judgment must be capable of analysis and must be verifiable. The court is not absolved from the need for an open and structured process of reasoning, with reference to specific factors and policy considerations taken into account. There is a sufficiently close connection between the rape and the policemen's employment in K because they were on duty, in uniform, and using a police vehicle. In these circumstances, K placed her trust in them to take her home safely, and therefore, a connection existed between their employment as policemen at that time and during the rape. The facts relevant to application of the "close connection" test were different in F, because the policeman was off-duty, not in uniform, and the car was not marked as a police car. Therefore, the result in that case is also justified.

H. CONCLUSIONS: SOUTH AFRICA

In South Africa the trend of widening liability of the state and public authorities has been facilitated by the adoption of a Constitution with an extensive Bill of Rights, which has opened the way toward an expanded concept of wrongfulness in the law of delict. High levels of crime and the absence of a victim compensation scheme have led to a number of cases where the victims of crime have successfully claimed damages from the state, based on the unlawful failure of the police to provide protection.

The Constitutional guarantee of just administrative action, given detailed content in legislation (the Promotion of Administrative Justice Act 2 of 2000), has widened the scope of liability of public bodies based on negligent failure of administrative justice. However, the courts will take into account, among other things, whether an imposition of liability for damages would likely have a "chilling effect" on performance of administrative or statutory functions by members of the board. The result will be different where there is fraud in the process of awarding a tender.

The potential liability of local authorities for omissions widened once the courts discarded the view that liability for an omission can only be imposed where the prior conduct of the defendant had positively created a risk of harm or a new source of danger.

Generally, the courts adopt a more conservative approach to liability of the state and public bodies for pure economic loss, as is evident from the cases involving liability of judicial or quasi-judicial bodies, tender boards, and liability for the economic effects of administrative negligence. Liability of the state and local authorities for patrimonial harm, resulting from property damage, injury, or death has widened considerably.

IV. GENERAL AND COMPARATIVE CONCLUSIONS

The answer to the question of why two basically similar starting points that voice similar policy considerations produce different practical conclusions is not clear. Different social backgrounds and conditions, different ways in which different societies perceive the obligations of public services to society, different levels of fear from deterring deserving people from public service, different magnitudes of constitutional effects, different levels of independence and courage amongst the judiciary, and different levels of activism on the Israeli Supreme Court and the South African Constitutional Court may all be only part of the explanation.

The mixed origins and open-ended norms of both the tort of negligence in Israeli law and the Aquilian action in South Africa provide considerable flexibility and scope for innovation in the development of tort law as it applies to the state and to public authorities. Both systems have felt the impact of certain worldwide trends toward the widening of liability of the state and public authorities. In both systems, the expansion of state and public-authority liability have been strongly influenced by constitutional values, essentially involving the concept of the state as the bearer of special responsibilities with concomitant accountability, particularly in respect of safety and security of persons. This concept of state accountability has enabled the courts to impose wider liability for systemic or organizational breaches of duty. In both jurisdictions, the multicultural nature of the societies and problems of crime and security have created an increased awareness of the need for expanded protection of fundamental human rights and for state accountability.

The courts in both countries have shown themselves to be active and innovative in expanding liability of the state and public authorities for negligence, for both acts of commission and omission. However, within an essentially similar conceptual structure, the South African courts have been much more conservative in their approach to state liability for pure economic loss than their Israeli counterparts. This can perhaps be attributed to a sense of priorities. In a developing country with huge disparities in wealth, the courts would naturally be inclined to prioritize safety and security of persons above pure economic loss. The South African courts have been similarly more conservative in cases involving administrative negligence and evidential loss.

The development of the law on state and public-authority liability in Israel and South Africa is also the product of factors such as the levels of education, the effectiveness of the public service, and the history and pervasiveness of constitutional ordering. Despite important differences, the law in the two jurisdictions has developed from a broadly similar mixed background; the courts have adopted broadly similar methods and reasoning; and the outcomes show broadly similar trends.

(1.) 5712-1968, 10 LSI 266 (Isr.) [hereinafter CWO]. This is a newer version of the British Mandatory Civil Wrong Ordinance, 1944, P.G. Supp. I No. 1380 p. 93 (Isr.) [hereinafter British Mandatory Civil Wrong Ordinance],

(2.) See Tamar Gidron, Israel, in MIXED JURISDICTIONS WORLDWIDE: THE THIRD LEGAL FAMILY (Vernon V. Palmer ed., 2d ed. forthcoming 2012).

(3.) GAD TEDESCHI, THE LAW OF CIVIL WRONGs 12-116 (Aharon Barak, Mishael Cheshin, & Izhak Englard eds., 1969).

(4.) The first and most important one is the Basic Law: Human Dignity and Liberty, 5752-1992, 1391 LSI 150 (1991-1992) (Isr.).

(5.) Aharon Barak, The Constitutional Revolution: Protected Human Rights, 1 MISHPAT UMIMSHAL 9 (1992) (Isr.).

(6.) See Reinhard Zimmermann & Daniel Visser, Introduction: South African Law as a Mixed Legal System, in SOUTHERN CROSS: CIVIL LAW AND COMMON LAW IN SOUTH AFRICA 9-12 (Reinhard Zimmermann & Daniel Visser eds., 1996); and Annel van Aswegen, Aquilian Liability I (Nineteenth Century), in SOUTHERN CROSS: CIVIL LAW AND COMMON law IN SOUTH AFRICA 559-564 (Reinhard Zimmermann & Daniel Visser eds., 1996).

(7.) See Eduard Fagan, Roman-Dutch Law in its South African Historical Context, in SOUTHERN CROSS: CIVIL LAW AND COMMON LAW IN SOUTH AFRICA 46-51 (Reinhard Zimmermann & Daniel Visser eds., 1996).

(8.) See Eduard Fagan, Roman-Dutch Law in its South African Historical Context, in SOUTHERN CROSS: CIVIL LAW AND COMMON LAW IN SOUTH AFRICA 57 (Reinhard Zimmermann & Daniel Visser eds., 1996).

(9.) See CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, ch. II.

(10.) See TORT LIABILITY OF PUBLIC AUTHORITIES IN COMPARATIVE PERSPECTIVE xvii (Duncan Fairgriew, Mads Andenas, & John Bell eds., British Inst, of Int'l & Comp. Law 2002).

(11.) See id. at xviii.

(12.) Gidron, supra note 2.

(13.) Israel Gilead, Israel, in INTERNATIONAL ENCYCLOPEDIA OF LAWS: TORT 19-21 (2003).

(14.) TEDESCHI, supra note 3, at 33-44; GAD TEDESCHI & ABRAHAM ROSENTHAL, CIVIL WRONGS ORDINANCE: IN THE LIGHT OF THE HISTORY OF ITS PREPARATION AND AMENDMENTS (Magnes Press 1960) (Isr.).

(15.) Draft Bill Civil Codex, 2011 HH 595.

(16.) Gilead, supra note 13, at 24-28.

(17.) See former Chief Justice Barak holding in CA 243/83 Municipality of Jerusalem v. Gordon, [1985] 39(1) PD 113, 134 (Isr.).

(18.) [section] 4 British Mandatory Civil Wrong Ordinance, supra note 1.

(19.) [section] 2 Civil Wrongs (Liability of the State) Law, 1968, SH No. 109 p. 339 [hereinafter Liability of the State Statute],

(20.) See id. [section] 5.

(21.) See id. [section] 3.

(22.) See [section] 7A-7C British Mandatory Civil Wrong Ordinance, supra note 1.

(23.) See id. [section] 7A(b).

(24.) See id. [section] 7F.

(25.) See id. [section] 6.

(26.) See id. [section] 8.

(27.) See [section] [section] 35-36 British Mandatory Civil Wrong Ordinance, supra note 1.

(28.) Donoghue v. Stevenson, [1932] A.C. 562 (H.L).

(29.) The CWO explicitly provided that the Ordinance should be interpreted and developed in line with English law.

(30.) Foundations of Law, 5740-1980, S.H. No. 978 p. 163 (Isr.) [hereinafter Foundations of Law].

(31.) [section] [section] 35-36 British Mandatory Civil Wrong Ordinance, supra note 1 as compared to the original version [section] [section] 50(1) & 50 (2) British Mandatory Civil Wrong Ordinance 1944 (amended 1947).

(32.) 1 ISRAEL GILEAD, TORT LAW--THE LIMITS OF LIABILITY 417-24 (Nevo 2012). CA 2625/02 Nachum v. Dorenbaum, [2004] 58(3) PD 385 (Isr.).

(33.) See primarily the judgments in CA 243/83 Jerusalem v. Gordon, [1985] 39(1) PD 113 (Isr.). See also CA 2781/93 Daaka v. Carmel Med. Ctr., [1999] 53(4) PD 526 (Isr.) (recognizing a patient's right to informed consent (when no casual connection between the lack of informed consent and the bodily injury incurred was established) as a basis for granting compensation in negligence).

(34.) Anns v. Merton London Borough Council, [1978] A.C. 72 (Eng.).

(35.) Caparo Indus. Pic. v. Dickman, [1990] 2 A.C. 605 (Eng.).

(36.) The test consists of two sub-tests. First, the court asks itself whether the class of defendants to which the specific defendant belongs owes a duty of care to the class of plaintiffs to which the specific plaintiff belongs for damages of the type incurred in the specific circumstances of the case. The focus here is on generalization. If the answer is affirmative, then the court asks these same four questions again but now the focus is on the specific defendant and the specific plaintiff, in the specific circumstances regarding the specific loss. This is the duty-in-fact, which again narrows the boundaries of liability. See CA 243/83 Jerusalem v. Gordon, [1985] 39(1) PD 113, 134 (Isr.); 1 GILEAD, supra note 32, at 440-49.

(37.) CA 145/80 Vaknin v. Beit Shemesh Local Council, [1980] 37(1) PD 113 (Isr.). The main problem with this model--which mostly concerns new factual situations-- is the question of where the border lies between the two duties and how the court formulates, in each case, the notional duty when, from a conceptual perspective, its decision binds courts in the future in every case with similar factual circumstances.

(38.) Caparo Indus. Pic., [1990] 2 A.C. 605.

(39.) CA 915/91 State of Israel v. Levi, [1994] 48(3) PD 45 (Isr.). The Levi holding has been criticized in Israel, primarily for its distinction between tort and non-tort considerations, on the one hand, and the mixture of general tort tests in questioning the proximity between the parties, on the other hand. See Tamar Gidron, Liability of the Supervisor of Insurance Companies to the collapse of an insurance company, 3 HAMISHPATL. Rev. 133 (1996) (Isr.); 1 GILEAD, supra note 32, at 682-692.

(40.) Foundations of Law, supra note 30.

(41.) [section] 20 Basic Law: The Judiciary, 1984, S.H. 1110.

(42.) [section] 1 Foundations of Law, supra note 30.

(43.) On the extensive use of comparative law, see Yoram Shachar, Ron Harris & Miron Gross, Citation Practices of the Supreme Court: Quantitative Analyses, 27 MISHPATIM 119 (1996) (Isr.). The research is based on data gathered by the authors between 1984 and 1994. See also Justice Rubinstein's holding in LCA 4693/05, Carmel Med. Cent. v. Malul (Aug. 29, 2010), Nevo Legal Database (by subscription) (Isr.). AHARON BARAK, INTERPRETATION IN LAW: THE GENERAL THEORY 491-92 (1992) (Isr.). LCA 1272/05, Carmi v. Sabag (Dec. 2, 2007), Nevo Legal Database (by subscription) (Isr.) on the priority of English law in Israeli tort law.

(44.) CA 2781/93 Daaka v. Carmel Med. Ctr., [1999] 53(4) PD 526 (Isr.).

(45.) CA 1338/97 Tnuva-Cent. Corp. for the Mktg. of Agric. Prod, in State of Israel v. Tufik, [2003] 57(4) PD 673 (Isr.). 43 CA 1081/00 Avnaal Distribution Ltd. v. State of Israel, [2005] 59(5) PD 193 (Isr.).

(46.) On Basic Laws and private law and Basic Laws and tort law see Gidron, supra note 2. Frances Raday, Privatizing Human Rights and the Abuse of Power, 13 CAN J. L. & JURIS 103 (2000). Chief Justice Barak holding in CA 294/91 Chevra Kadisha Kastenbum v. Kastenbaum Chevra Kadisha, [1992] 46(2) PD 464 (Isr.). Daphne B. Erez & Israel Gilead, Human Rights in the Laws of Contract and Tort: The Silent Revolution, 8 KIRYAT HAMISHPAT 11 (2009) (Isr.); Israel Gilead, Tort Law in Aharon Barak's Adjudication, in THE JUDICIAL LEGACY OF AHARON BARAK 487 (Celia W. Fassberg, Barak Medina & Eyal Zamir eds., 2009) (Isr.).

(47.) Gilead, supra note 13, at 24-25, 94,106.

(48.) Israel Gilead, Tort Liability of Public Authorities and Public Officials (Part I), 2 MISHPAT UMIMSHAL 339 (1995) (Isr.); Israel Gilead, Tort Liability of Public Authorities and, Public Officials (Part II), 3 MISHPAT UMIMSHAL 55 (1995) (Isr.); CA 10078/03 Shatil v. Mekorot Water Co. Ltd. (Mar. 19, 2007), Nevo Legal Database (by subscription) (Isr.); CA 915/91 State of Israel v. Levi, [1994] 48(3) PD 45 (Isr.); CA 2906/01 Haifa v. Menora Ins. Co. (May 25, 2006), Nevo Legal Database (by subscription) (Isr.).

(49.) Robert Rebhahn, Public Liability in Comparison--England, France, Germany, in EUROPEAN TORT LAW 2005 68 (Helmut Koziol & Barbara C. Steininger eds., 2006). See also CHERIE Booth & DANIEL SQUIRES, THE NEGLIGENCE LIABILITY of PUBLIC AUTHORITIES (Oxford Univ. Press 2006).

(50.) 2 GILEAD, supra note 32, at 1052-54.

(51.) Id. at 1049-52.

(52.) Gilead, supra note 13, at 95.

(53.) DAPHNA AVNIELI, IMMUNITY OF PUBLIC OFFICIALS (2001) (Isr.).

(54.) Legislation has constantly expanded the immunity granted to the state for acts of war. See Amendments to [section] 2 Liability of the State Statute, supra note 19.

(55.) See, e.g., LCA 5277/08 Estate of Amir Alichshvilli v. State of Israel (July 28, 2009), Nevo Legal Database (by subscription) (Isr.). The Israeli Supreme Court decided that there was no negligence on the part of the police. Thus the State was not liable for the death of the child that was killed by his father. See also CA 9656/08 State of Israel v. Saidi (Dec. 15, 2011), Nevo Legal Database (by subscription) (Isr.). The State was not negligent in issuing working permits to the plaintiffs.

(56.) For a typical action against the police for failing to prevent a father from killing his own child in the presence of police officers, see LCA 5277/08 The Estate of Amir Alichshvilli v. State of Israel (July 28, 2009), Nevo Legal Database (by subscription) (Isr.). Compare to CC (Jer.) 7191/05 Boxer Beer Israel Ltd. v. Ministry of Trade, Industry & Labor (Jan. 14, 2009), Nevo Legal Database (by subscription) (Isr.). There, the court decided that the State had not acted negligently. Id.

(57.) CA 9063/03 John Doe v. Hadassah Med. Org. 60(1) PD 556 [2005] (Isr.).

(58.) CA 3699-10-09 State of Israel v. Shoval (Feb. 20, 2011), Nevo Legal Database (by subscription) (Isr.) (a child jumped over a school fence); CC 5828/06 Amasha v. Isifya Local Council (Jan. 25, 2011), Nevo Legal Database (by subscription) (Isr.) (the plaintiff was burned as a result of a fire started on the defendant's premises).

(59.) CC (TA) 1714/04 The Estate of Naim v. Izhar (Nov. 18, 2009), Nevo Legal Database (by subscription) (Isr.).

(60.) CA 862/80 Hadera Municipality v. Zohar, [1983] 37(3) PD 757 (Isr.); CA 324/82 Beni-Brak Municipality v. Rotberd, [1991] 45(4) PD 102 (Isr.); CA 343/74 Grovner v. Haifa Municipality, [1975] 30(1) PD 141 (Isr.).

(61.) CA 377/8 Naim v. State of Israel Minstry of Eduction, [1988] 42(1) PD 153 (Isr.); CA 684/76 Eyal v. Fuksman, [1977] 31 (3) PD 349 (Isr.).

(62.) CC (TA) 8589/06 Masabach v. State of Israel (May 3, 2011), Nevo Legal Database (by subscription) (Isr.); CA 8384/05 Salem v. State of Israel (Oct. 7, 2008), Nevo Legal Database (by subscription) (Isr.); CA 6970/99 Samara v. State of Israel, [2002] 56(6) PD 185 (Isr.) (the Court rejected the plaintiff negligence claim). For comparison see LCA 5203/08 State of Israel v. Agbaria (Sept. 24, 2009), Nevo Legal Database (by subscription) (Isr.) and CA 3889/00 Lerner v. State of Israel--The Ministry of Defense, [2002] 56(4) PD 304 (Isr.). In both cases the court held that the State was not negligent.

(63.) CA 243/83 Jerusalem v. Gordon, [1985] 39(1) PD 113, 134 (Isr.).

(64.) [section] 60 British Mandatory Civil Wrong Ordinance, supra note 1 (requiring malice).

(65.) CA 915/91 State of Israel v. Levi, [1994] 48(3) PD 45 (Isr.).

(66.) CA 915/91 State of Israel v. Levi, [1994] 48(3) PD 45 (Isr.).

(67.) Id. In this case, liability was negated both in negligence as well as in breach of statutory duty, given the extent of discretion involved.

(68.) 2 GILEAD, supra note 32, at 1101-07.

(69.) See, e.g., CA 1068/05, Jerusalem v. Mimuni (Dec. 14, 2006), Nevo Legal Database (by subscription) (Isr.). The Jerusalem Municipality failed to license a ranch and was held liable for the plaintiffs losses caused while riding one of the ranch's horses. Id.

(70.) For detailed examples, see 2 GILEAD, supra note 32, at 1113-37.

(71.) Motion 106/54 Weinstein v. Kadima Water Supply Coop. Soc'y Ltd., [1954] 8 PD 1317 (Isr.).

(72.) Hedley Byrne Co. v. Heller [1964] A.C. 465 (H.L.); Caparo Indus. Pic., [1990] 2 A.C. 605.

(73.) Ultramares Corp. v. Touche, Niven & Co., 174 N.E. 441 (N.Y. 1931). See VERNON VALENTINE PALMER & MAURO BUSSANI, PURE ECONOMIC LOSS: NEW HORIZONS IN COMPARATIVE LAW (Routledge-Cavendish 2009).

(74.) LCA 444/87 Elsocha v. Estate of Dachan, [1990] 44(3) PD 397 (Isr.).

(75.) These cases mainly involve Planning and Construction Committees.

(76.) CA 119/86 Keny Houses Ltd. v. Netayna Municipality Local Planning & Constr. Comm., [1992] 46(5) PD 727 (Isr.).

(77.) CA 3464/05 Paz Oil Co. Ltd. v. State of Israel (July 12, 2006), Nevo Legal Database (by subscription) (Isr.).

(78.) LA (Jer.) 2315/00 State of Israel v. Friedman (Mar. 12, 2001), Nevo Legal Database (by subscription) (Isr.). For a case law critique see CC (TA) 199207/02 Yair S. Mktg. Ltd. v. First Int'l Bank Ltd. (Sept. 14, 2005), Nevo Legal Database (by subscription) (Isr.); CA (TA) 11949/01 Jerusalem Bank Ltd. v. Zebgalov (Feb. 13, 2006), Nevo Legal Database (by subscription) (Isr.) (imposing liability on the state for 75% of the loss incurred by the plaintiff as a result of the negligence of ministry of justice's officials in charge of execution of judgments--who enjoy immunity identical to that of judges--for the nullification of a mortgage in the bank's favor based on a forged approval. On appeal, 25% of the liability of the attorney was voided and the full damage was imposed on the state).

(79.) CA 337/81 Buskila v. State of Israel, [1983] 37(3) PD 337 (Isr.) (already in the early 1980s imposing liability on the police for the faulty handling of a dispute over agricultural produce).

(80.) See primarily the hesitation in establishing the notional duty in the first case of this type to reach the Supreme Court: CA 429/82 State of Israel v. Sohan, [1982] 42(3) PD 733 (Isr.).

(81.) See also CA 126/85 R.G.M. Mart Corp. v. State of Israel, [1990] 44(4) PD 272 (Isr.).

(82.) CA 1678/01 State of Israel v. Weiss, [2004] 58(5) PD 167 (Isr.) (distinguishing between the circumstances of this case and the celebrated Hill v. Chief Constable of West Yorkshire, [1989] A.C. 53 (H.L.) case, where no complaint had been made to the police).

(83.) Family Court (Jer.) 29170-05 Estate of Elimelech v. Estate of Apota (Feb. 20, 2011), Nevo Legal Database (by subscription) (Isr.).

(84.) Family Court (Jer.) 29170-05 Estate of Elimelech v. Estate of Apota (Aug. 8, 2011), Nevo Legal Database (by subscription) (Isr.).

(85.) CC (Rishon Lezion) 8388/04 Aharoni v. State of Israel (Jan. 15, 2009), Nevo Legal Database (by subscription) (Isr.).

(86.) CC 1906-08-07 Gonir Cartel Ltd. v. State of Israel (June 26, 2011), Nevo Legal Database (by subscription) (Isr.).

(87.) CC (Rishon Lezion) 6664/04 Hovev v. Israel Electric Corp. (June 28, 2009), Nevo Legal Database (by subscription) (Isr.). But see CC (Netanya) 8387/02 Banyin v. State of Israel (May 1, 2005), Nevo Legal Database (by subscription) (Isr.) (dismissing a claim against the State, by a person whose business partner had embezzled the partnership's money, for having taken eight years to file an indictment that was eventually dismissed because of the miscarriage of justice caused to the accused. The magistrate's court held that there was no causation between the dismissal of the criminal proceeding and the damages of the theft incurred by the plaintiff.).

(88.) CC (TA) 11583/04, Sidis v. Givatayim Municipality (Sept. 1, 2005), Nevo Legal Database (by subscription) (Isr.). Also, an unregulated and unjustified complaint by the Postal Authority against one of its employees led to the imposition of liability. LCA 1808/03, Agsham v. Postal Auth. (Dec. 25, 2003), Nevo Legal Database (by subscription) (Isr.).

(89.) CA 1068/05, Jerusalem Municipality v. Mimuni (Dec. 14, 2006), Nevo Legal Database (by subscription) (Isr.).

(90.) CA (Jer.) 8526/96 John Doe v. State of Israel (June 23, 2005), Nevo Legal Database (by subscription) (Isr.).

(91.) CA 1081/00 Avnaal Distrib. Ltd. v. State of Israel, [2005] 59(5) PD 193 (Isr.).

(92.) CC 6525/04 Livni v. State of Israel (Sept. 12, 2011), Nevo Legal Database (by subscription) (Isr.).

(93.) CA 2906/01 Haifa v. Menora Ins. Co. (May 25, 2006), Nevo Legal Database (by subscription) (Isr.).

(94.) CA 3464/05 Paz Oil Co. Ltd. v. State of Israel (July 12, 2006), Nevo Legal Database (by subscription) (Isr.).

(95.) Hedley Byrne Co. v. Heller [1964] A.C. 465 (H.L.).

(96.) Ultramares Corp. v. Touche, Niven & Co., 174 N.E. 441 (N.Y. 1931).

(97.) Motion 10G/54 Weinstein v. Kadima Water Supply Coop. Soc'y Ltd., (1954] 8 PD 1317 (Isr.).

(98.) CA 209/85 Kiryat Ata Municipality v. Alinko Ltd., [1991] 42(1) PD 190 (Isr.); CA 653/97 Baruch & Tzipporrah Ctr. Ltd. v. Tel Aviv Municipality, [1999] 53(5) PD 917 (Isr.)]; CA 10508/08 Dor Zahav Bldg. Constr. & Inv. v. Herzliya Municipality Local Planning & Constr. Comm. (Feb. 4, 2010), Nevo Legal Database (by subscription) (Isr.). See also, CA 9313/08 Ofenberg v. Tel Aviv Municipality Local Planning & Constr. Comm. (Sept. 7, 2011), Nevo Legal Database (by subscription) (Isr.). The Supreme Court summarizes the current position on the issue.

(99.) A different approach is spearheaded by Supreme Court Justice Amit. See, e.g., CA (TA) 195/01 I. GIL Import Ltd. v. The State of Israel: Customs Auth. (Oct. 23, 2009), Nevo Legal Database (by subscription) (Isr.) decided by Justice Amit when he was still a district court judge. His decision was affirmed in the Supreme Court, based on different reasoning.

(100.) LCA 1808/03, Agsham v. Postal Auth. (Dec. 25, 2003), Nevo Legal Database (by subscription) (Isr.).

(101.) Id. (97.) Motion 10G/54 Weinstein v. Kadima Water Supply Coop. Soc'y Ltd., (1954] 8 PD 1317 (Isr.).

(102.) CA 10078/03 Shatiel v. Mekorot Water Co. (Mar. 19, 2007), Nevo Legal Database (by subscription) (Isr.) (although the nature of the loss here was questionable).

(103.) CA 1617/04 CHIM--NIR Flight Services v. Tel-Aviv Stock Exch. (June 29, 2008), Nevo Legal Database (by subscription) (Isr.).

(104.) CA 1617/04 Kim Nir Airport Servs. v. Securities Exch. (June 29, 2008), Nevo Legal Database (by subscription) (Isr.).

(105.) CA 2162/02 Jane Doe v. State of Israel (June 1, 2008), Nevo Legal Database (by subscription) (Isr.). This outcome is especially puzzling since it was clear to the court that the state would not take legal action for restitution against the sister who had obtained the whole inheritance. Liability was denied in CC 1113/04 (TA) SH. G. v. State of Israel--Ministry of Soc. Affairs and Soc. Servs. (Mar. 20, 2011), Nevo Legal Database (by subscription) (Isr.). No negligence and no causal connection existed, according to the court's findings. Id.

(106.) CA 4576/08 Ben Zvi v. Hiss (July 7, 2011), Nevo Legal Database (by subscription) (Isr.).

(107.) CC (Haifa) 6125/05 Shmailov v. Akko Religious Council (July 27, 2008), 08(3) 5402, Takdin Legal Database (by subscription) (Isr.).

(108.) CA (Jerusalem) 8036/06 Katz v. State of Israel (Sept. 14, 2009), Nevo Legal Database (by subscription) (Isr.).

(109.) Ariel Porat & Alex Stein, The Evidential Damage Doctrine: A Positive Analysis of the Law, 21 IYUNEI MISHPAT 191 (1998) (Isr.). For additional development, see ARIEL PORAT & ALEX STEIN, TORT LIABILITY UNDER UNCERTAINTY (Oxford Univ. Press 2001) (Isr.). In contrast to this well-accepted evidential aspect, the substantive aspect and outcome of the situation--recognition of the defendant's liability in negligence not just for the original damage incurred by him but also for worsening the evidential position and prospects of the plaintiff--has not yet achieved recognition in Israeli law.

(110.) Compare CA 8151/98 Sternberg v. Zajicek, [2001] 56(1) PD 539 (Isr.) (shifting the burden of proof to the defendant in a case of "drop foot" caused by an operation; medical records were missing) with CA 248/86 Estate of Chananshvili v. Rotem Ins. Co., [1991] 45(2) 529 (Isr.) (shifting the burden of proof to the defendant since his tortious act led to the loss of a right of action on the part of the injured party).

(111.) CA 3G1/00 Dahar v. Yoav, [2005] 59(4) PD 310 (Isr.).

(112.) CFH 1912/05 State of Israel v. Dahar (April 12, 2005), Nevo Legal Database (by subscription) (Isr.).

(113.) CA (Jer.) 15203/01 Feldman v. State of Israel (Oct. 25, 2004), Nevo Legal Database (by subscription) (Isr.).

(114.) CA 8858/02 State of Israel v. Zehoveh (June 2, 2004), Nevo Legal Database (by subscription) (Isr.).

(115.) Compare CA 1457/07 Herzeliya Municipality v. Katz (Jan. 14, 2009), Nevo Legal Database (by subscription) (Isr.), with CA 9328/02 Meir v. Laor (April 22, 2004), Nevo Legal Database (by subscription) (Isr.) (which is also a case of a "built-in evidential loss").

(116.) Guy Shani, Evidential Damage and its Punishment: Praising the Move from the Current Model (Shifting the Burden) to Models Based on Proportionality and Indicatives, 41(2) MISHPATIM 315 (2011) (Isr.).

(117.) See, e.g., Justice Amit's opinion in CC (Haifa) 653/02 H. Yaakobi Constr. & Inv. v. Hadera Municipality (Oct. 31, 2005), Nevo Legal Database (by subscription) (Isr.). Justice Amit rendered this decision as a district court justice. Justice Amit has since been appointed to the Supreme Court. It is expected that his voice on the matter of public "authorities" liability will help in halting the erosion. See also 2 GILEAD, supra note 32, at 1137-1156.

(118.) See, Annel van Aswegen, Aquilian Liability I (Nineteenth Century), in SOUTHERN CROSS: CIVIL LAW AND COMMON LAW IN SOUTH AFRICA 559-64 (Reinhard Zimmermann & Daniel Visser eds., 1996).

(119.) Gerhard Wagner, Comparative Tort Law, in THE OXFORD HANDBOOK OF COMPARATIVE LAW 1008 (Mathias Reimann & Reinhard Zimmermann eds., 2006).

(120.) See, Francois du Bois, State Liability in South Africa: A Constitutional Remix, 25 TUL. EUR. & CIV. L.F. 139, 146 (2010).

(121.) Id. at 159.

(122.) See, Annel van Aswegen, Aquilian Liability I (Nineteenth Century), in SOUTHERN CROSS: CIVIL LAW AND COMMON LAW IN SOUTH AFRICA 583-85 (Reinhard Zimmermann & Daniel Visser eds., 1996); Dale Hutchison, Aquilian Liability II (Twentieth Century), in SOUTHERN CROSS: CIVIL LAW AND COMMON LAW IN SOUTH AFRICA 605-09 (Reinhard Zimmermann & Daniel Visser eds., 1996).

(123.) See, Dale Hutchison, supra note 11, at 624-29.

(124.) See id. See infra Part II.C.

(125.) South Africa could be losing as much as 20% of its total procurement budget to graft annually, translating to between R25bn and R30bn, according to an estimate in October 2011 by Willie Hofmeyr, head of both the Special Investigating Unit (SIU) and the Asset Forfeiture Unit, in response to a parliamentary question about the extent of government corruption. See Govt Corruption: R30bn could be lost--SIU, NEWS24 (Oct. 12, 2011), http://www.news24.com/SouthAfrica/Politics/Govt corruption-R30bn-could-be-lost-SIU-20111012#.

(126.) See Carmichele v. Minister of Safety & Sec., [2001] (4) SA 938 (CC) (Centre for Applied Legal Studies intervening); Van Eeden v. Minister of Safety and Sec., [2002] (4) SA 346 (SCA); Minister of Safety & Sec. v. Van Duivenboden, [2002] (6) SA 431 (SCA); Minister of Safety & Sec. v. Hamilton, [2004] (2) SA 216 (SCA).

(127.) Act 108 of 1996, s.33.

(128.) Promotion of Administrative Justice Act, Act 2 of 2000.

(129.) See Steenkamp NO v. Provincial Tender Bd. of the E. Cape, [2007] (3) SA 121 (CC) (judgment by Moseneke DCJ, [paragraph] 37).

(130.) Steenkamp NO v. Provincial Tender Bd. of the E. Cape, [2006] JOL 18364 (CC); Olitzki Prop. Holdings v. State Tender Bd., [2001] (3) SA 1247 (SCA); Minister of Finance v. Gore NO, [2007] (1) SA 111 (SCA).

(131.) See du Bois, supra note 120, at 166-71.

(132.) See Max Loubser, Unlawfulness in the South African law of delict: Focus areas in the debate, in VITA PERIT, LABOR NON MORITUR, LIBER MEMORIALIS: PJ VISSER 143 (Trynie Boezaart & Piet de Kock eds., 2008).

(133.) See id.

(134.) EUROPEAN GROUP ON TORT LAW, PRINCIPLES OF EUROPEAN TORT LAW, TEXT AND COMMENTARY 28 (Springer-Verlag/Wien, 2005).

(135.) Id.; W.V. Horton Rogers, Wrongfulness wider English tort law, in UNIFICATION OF TORT LAW: WRONGFULNESS 39 (Helmut Koziol ed., 1998) ("But from another point of view the concept is almost meaningless since 'wrong'/wrongfulness' may be regarded as merely a shorthand description of the situations in which tort liability is imposed"). The same can be said of the following comment, made in the context of a discussion of protected interests in European systems of tort law: "It all boils down to the fact that negligent conduct must be legally wrong or that damage needs to be legally relevant." CEES VAN DAM, EUROPEAN TORT LAW 141, [paragraph] 701-1 (Oxford Univ. Press, 2006).

(136.) Rogers, supra note 135, at 40.

(137.) Wagner, supra note 119, at 1013-14.

(138.) Rogers, supra note 135, at 40.

(139.) [1932] AC 562.

(140.) Rogers, supra note 135, at 41-42; see also F.H. LAWSON & B.S. MARKESINIS, TORTIOUS LIABILITY FOR UNINTENTIONAL HARM IN THE COMMON AND THE CIVIL LAW 95 (Cambridge Univ. Press, 1982).

(141.) See TONY WEIR, TORT LAW 34-54 (Oxford Univ. Press, 2002).

(142.) Caparo Indus, v. Dickman, [1990] 1 All E.R. 568 574 (quote by Lord Bridge).

(143.) MARK LUNNEY & KEN OLIPHANT, TORT LAW, TEXT AND MATERIALS 119 (2d ed., 2003).

(144.) GERT BRUGGEMEIER, COMMON PRINCIPLES OF TORT LAW: A PRE-STATEMENT OF LAW 77 (British Inst, of Int'l & Comp. L., 2004).

(145.) Helmut Koziol, Conclusions, in UNIFICATION OF TORT LAW: WRONGFULNESS 131 (Helmut Koziol ed., 1998).

(146.) See BASIL S. MARKESINIS & HANNES UNBERATH, THE GERMAN LAW OF TORTS: A COMPARATIVE TREATISE 85-86 (4th ed., 2002).

(147.) See Loubser, supra note 132, at 128.

(148.) See Loubser, supra note 132, at 133-36.

(149.) See Loubser, supra note 132, at 133-36.

(150.) [1994] (4) SA 347 (A) 361H/I-362A/B; 363C.

(151.) [1975] (3) SA 590 (A).

(152.) [1912] AD 659.

(153.) See Silva's Fishing Corp. (Pry) v. Maweza, [1957] (2) SA 256 (A) 264-5. See also Regal v. Afr. Superslate (Pty), [1963] (1) SA 102 (A); and Minister of Forestry v. Quathlamba (Pty), [1973] (3) SA 69 (A) 82.

(154.) [1975] (3) SA 590 (A).

(155.) See Minister van Polisie v. Ewels, [1975] (3) SA 590 (A) 597.

(156.) See Van der Merwe Burger v. Munisipaliteit van Warrenton, [1987] (1) SA 899 (C); Rabie v. Kimberley Munisipaliteit, [1991] (4) SA 243 (NC) 258; Cape Town Municipality v. Butters, [1996] (1) SA 473 (C) 477, 479-80; Longueira v. Securitas of S. Afr. (Pty), [1998] (4) SA 258 (W), 262-63.

(157.) [2000] (3) SA 1049 (SCA).

(158.) See, e.g., Carmichele v. Minister of Safety & Sec., [2001] (1) SA 489, [paragraph] 7 (SCA); Cape Town Municipality v. Bakkerud, [2000] (3) SA 1049, [paragraph] 14-32 (SCA); Cape Metropolitan Council v. Graham, [2001] (1) SA 1197, [paragraph] 6 (SCA); Olitzki Prop. Holdings v. State Tender Bd., [2001] (3) SA 1247, [paragraph] 11, 31 (SCA); BOE Bank v. Ries, [2002] (2) SA 39 [paragraph] 13 (SCA).

(159.) See generally, CHUKS OKPALUBA & PATRICK C. OSODE, GOVERNMENT LIABILITY: SOUTH AFRICA AND THE COMMONWEALTH 16-18 (Juta & Co., 2010).

(160.) See du Bois, supra note 120, at 140.

(161.) See Hector L. MacQueen, Human rights and Private Law in Scotland: A Response to President Barack, 78 TUL. L. REV. 363, 377 (2003).

(162.) See du Bois supra note 120, at 171.

(163.) See Alfred Cockrell, Private Law and the Bill of Rights: A threshold issue of "horizontality," in BILL OF RIGHTS COMPENDIUM (LexisNexis 2004).

(164.) CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA [section] 39(2).

(165.) Id. [section] 8(3).

(166.) Id. [section] 39(l)(a).

(167.) Id. [section] 33.

(168.) Id. [section] 35.

(169.) Id. [section] 12.

(170.) CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA [section] 9.

(171.) Id. [section] 32.

(172.) Carmichele v. Minister of Safety & Sec., [2001] (4) SA 938 (CC) (Centre for Applied Legal Studies intervening).

(173.) Id. [paragraph] 32-37.

(174.) Carmichele v. Minister of Safety & Sec., [2001] (4) SA 938 [paragraph] 54 (CC).

(175.) Id. [paragraph] 57.

(176.) Carmichele v. Minister of Safety & Sec., [2004] (3) SA 311 (SCA).

(177.) Minister of Safety & Sec. v. Van Duivenboden, [2002] (6) SA 431 (SCA).

(178.) Minister of Safety & Sec. v. Van Duivenboden, [2002] (6) SA 431 [paragraph] 20 (SCA).

(179.) Id. [paragraph] 21.

(180.) Brooks v. Minister of Safety & Sec., [2008] ZASCA 141, [paragraph] 6.

(181.) Van Eeden v. Minister of Safety & Sec., [2002] (4) SA 346 (SCA) (Women's Legal Centre Trust, as Amicus Curiae).

(182.) See generally, OKPALUBA & OSODE, supra note 148, at 146-48.

(183.) See, e.g., Knop v. Johannesburg City Council, [1995] (2) SA 1 (A) (holding that a local authority charged with the implementation of zoning provisions did not have a duty to prevent economic loss to a person who incurred wasted costs when his application for permission to subdivide property was granted, but it then later appeared that the permission was in contravention of an existing zoning plan).

(184.) Minister of Law & Order v. Kadir, [1995] (1) SA 303 (A).

(185.) Id. at 321.

(186.) Knop v. Johannesburg City Council, [1995] (2) SA 1 (A), 28.

(187.) See also Kadir, 1995 (1) SA 303 (A), 319; Lascon Props. (Pty) v. Wadeville Inv. Co. (Pty), [1997] (4) SA 578 (W).

(188.) Id. at 33.

(189.) Steenkamp NO v. Provincial Tender Bd. of E. Cape, [2007] (3) SA 121 (CC).

(190.) Steenkamp NO v. The Provincial Tender Bd. of the E. Cape , [2007] (3) SA 121 (CC) para [42],

(191.) Olitzki Prop. Holdings v. State Tender Bd., [2001] (3) SA 1247 (SCA).

(192.) Minister of Finance v. Gore NO, [2007] (1) SA 111 (SCA).

(193.) Id. [paragraph] 87.

(194.) See Franschhoekse Wynkelder (Ko-operatief) Bpk v. S. African Rys. & Harbours, [1981] (3) SA 36 (C); Mukheiber v. Raath, [1999] (3) SA 1065, [paragraph] 28 (SCA).

(195.) See Shell & BP SA Petroleum Refineries (Pty) v. Osborne Panama SA, [1980] (3) SA 653 (D) 659-60; Franschhoekse Wynkelder, 1981 (3) SA 36 (C); Mpongwana v. Minister of Safety & Sec., [1999] (2) SA 794 (CPU) 802-3; Mukheiber, [1999] (3) SA 1065, [paragraph] 28.

(196.) Telematrix (Pty) v. Adver. Standards Auth. SA, [2006] (1) SA 461 (SCA) [paragraph] 12.

(197.) See generally, OKPALUBA & OSODE, supra note 148, at 39-46.

(198.) Minister of Police v. Rabie, [1986] (1) SA 117 (A) 134.

(199.) SALMOND & HEUSTON ON THE LAW OF TORTS 443 (R. F.V. Heuston & R.A. Buckley eds., 21st ed., 1996).

(200.) Feldman (Pty) v. Mall, 1945 AD 733, 756.

(201.) Minister van Veiligheid en Sekuriteit v. Japmoco Bk, [2002] (5) SA 649 (SCA); Minister van Veiligheid en Sekuriteit v. Phoebus Apollo Aviation Bk, [2002] (5) SA 475 (SCA).

(202.) Minister of Police v Rabie, 1986 (1) SA 117 (A); Minister van Veiligheid en Sekuriteit v. Japmoco BK, [2002] (5) SA 649 (SCA); Minister van Veiligheid en Sekuriteit v. Phoebus Apollo Aviation BK, [2002] (5) SA 475 (SCA); Masuku v. Mdlalose, [1998] (1) SA 1 (SCA); Smit v. Minister van Polisie, [1997] (4) SA 893 (T); K v. Minister of Safety & Sec., [2005] (6) SA 419 (CC). In Munengami v Minister of Def., [2007] (2) SA 320 (ZH), vicarious liability was not imposed where soldiers assaulted a civilian in pursuit of their own interests. The assault itself was not authorized and it did not constitute an unlawful execution of an authorized act. Id.

(203.) K, [2005] (6) SA 419 (CC).

(204.) Anton Fagan, The Confusions of K, 126 S. AFR. L.J. 156, 195-96 (2009).

(205.) Minister of Safety & Sec. v. Luiters, [2006] (4) SA 160 (SCA); 2007 (2) SA 106 (CC).

(206.) Minister of Safety & Sec. v. F, [2011] ZASCA 3 (Feb. 22, 2011).
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Title Annotation:Third International Congress of the World Society of Mixed Jurisdiction Jurists Symposium on Methodology and Innovation in Mixed Legal Systems; III. South Africa through H. Conclusions: South Africa, p. 755-780
Author:Loubser, Max; Gidron, Tamar
Publication:Loyola Law Review
Date:Dec 22, 2011
Words:13645
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