In July, SA was ravaged by lootings and violent protests after the incarceration of former president Jacob Zuma. Reports suggest that as many as 337 people have been killed and hundreds of businesses were lost or destroyed as a result of the violence that erupted during demonstrations across the country.
Among them was a 15-year-old who died after being shot with a rubber bullet by police during unrest at Southgate Spar in Pietermaritzburg. A witness to the incident claimed that the boy was standing in the parking lot, watching looters attempt to break down the doors that lead to the Spar centre, when he and his eight-year-old brother were shot at with rubber bullets by police.
Such careless and costly action by those tasked with protecting us begs the question: who is liable for damage caused to your person or property when the SA Police Service (SAPS) fails to maintain public order during times of civil unrest?
To establish liability of the SAPS, an injured party must prove, inter alia, that a legally protected interest had been infringed by the SAPS. Therefore, it must be established whether the legal convictions of the community required the SAPS to have acted to prevent harm to bystanders and property during the aforementioned protests.
Under the Police Act 58 of 1995, the functions of the police include the maintenance of law and order and the prevention of crime. The SAPS is thus one of the primary agencies of the state responsible for the discharge of its constitutional duty to protect the public and in general against invasion of their fundamental rights by the perpetrators of violent crime.
Furthermore, section 205(3) of the constitution defines the duties of the SAPS as including preventing combat and investigating crime, to maintain public order, to protect and secure inhabitants of the republic and their property and to uphold the law. In section 7 of the constitution the state is given a clear obligation to “respect, protect, promote and fulfil the rights in the Bill of Rights”.
It cannot be disputed that fundamental rights of certain individuals were affected by the aforementioned protest and lootings, including the rights to human dignity, life, freedom and security of person, and property. It can be argued that the legal convictions of the community imposed a constitutional and social duty on the SAPS to have acted to prevent harm to people and property during the protests of July.
The protests quickly turned violent and harm to the public was therefore foreseeable, the longer the protests continued. It can thus be argued that any failure by the SAPS to take appropriate action, which resulted in harm to the public, may be actionable.
Furthermore, it follows that the legal convictions of the community impose a duty on the SAPS to not cause harm to bystanders when carrying out their duties, unless such harm was a by-product of force necessary to maintain public order.
In our constitutional democracy, it is pertinent that those who are tasked with our protection carry out their duties while being mindful of our rights. Where the actions of members of the SAPS venture outside the parameters of reasonable force, such actions may be actionable in a claim for damages against the minister of police.
The converse is therefore true as well: where the SAPS fails to take reasonable action to prevent a foreseeable harm, the explicit and underlying constitutional values demands that the SAPS be accountable to the public.
Francis is associate attorney at Adams and Adams
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