Phoebus Apollo Aviation CC v Minister of Safety and Security (CCT19/02) [2002] ZACC 26; 2003 (1) BCLR 14 ; 2003 (2) SA 34 (CC) (28 November 2002)

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[2002] ZACC 26
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Phoebus Apollo Aviation CC v Minister of Safety and Security (CCT19/02) [2002] ZACC 26; 2003 (1) BCLR 14 ; 2003 (2) SA 34 (CC) (28 November 2002)

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 19/02
PHOEBUS
APOLLO AVIATION CC
Appellant
versus
THE
MINISTER OF SAFETY AND SECURITY
Respondent
Heard
on : 5 November 2002
Decided
on : 28 November 2002
JUDGMENT
KRIEGLER
J:
[1]
The High Court in Pretoria awarded the appellant damages against the
respondent. The Supreme Court of Appeal (the SCA)
1
reversed the order and the appellant now wants to have the original
award restored, alleging constitutional grounds for interference.
The
basic question is whether the respondent is vicariously liable to the
appellant for the conduct of three dishonest policemen
.
[2]
The appellant
corporation was robbed of a large sum of money one night in November
1998 when an armed gang gained access to the home
of the appellant’s
controlling member in Midrand. In mid-January 1999 the investigating
officer traced part of the spoils to the
home of the father of two of
the robbers near Tzaneen. Accompanied by an informer the
investigating officer went there – only to
find that the money had
gone. He had been forestalled by the three dishonest police officers
who had taken the money the previous
day. Although they had nothing
to do with the investigation of the robbery and were indeed not even
stationed at Midrand
2
,
they had got wind of the whereabouts of the money and decided to
steal it. On the pretext of being about police business they drove
to
Tzaneen in a police car. There they induced the father under colour
of their authority as police officers to hand over his sons’
cache.
None of this money they stole was ever recovered, hence the action
against the respondent.
[3] Leave to appeal to this
Court against the decision of the SCA was granted to the appellant on
the strength of the contention on
its behalf that there was a
constitutional substratum to the envisaged case. More specifically
the application for leave to appeal
suggested that the case involved
an infringement of the appellant’s right to be protected in its
property
3
and might well involve developing the common law relating to the
vicarious liability of the state for delicts committed by police
officers. The appellant also raised the special obligations imposed
on the South African Police Service by the Constitution.
4
Section 39(2) of the Constitution
5
does indeed command all courts to promote the spirit, purport and
objects of the Bill of Rights in developing the common law; and
section 167 of the Constitution does vest the ultimate responsibility
to ensure compliance with this prescript of section 39(2) in
the
Constitutional Court. It is also correct, as the appellant contended,
that this jurisdiction was exercised in the case of Carmichele.
6
The Court there analysed the constitutional obligation resting on the
state, acting through the agency of the police and the prosecution
service, to protect women against foreseeable harm at the hands of
known sexual offenders, and did develop the common law accordingly.
[4] Upon closer examination, however, it is clear that
none of these contentions advanced on behalf of the appellant is
valid. The
appellant’s property rights under the Constitution are
not engaged; the duties imposed on the police by the Constitution
carry
the matter no further; and the reliance on the judgment in
Carmichele is misplaced. The appellant’s constitutional right to be
protected in the enjoyment of its property was not in issue. The
constitutional foundation for this property claim advanced by counsel
for the appellant, must be sought in the provisions of section 25(1)
of the Constitution.
7
It is clear, however, that these provisions are inapposite here. They
are aimed at protecting private property rights against governmental
action and are quite irrelevant here where the appellant was
originally deprived of its property by robbers and recovery of part
of it was later frustrated by the three thieves.
[5] The judgment of this Court
in Carmichele is also not analogous. That case was concerned with the
issue of wrongfulness. The present
case is not concerned with
wrongfulness but with liability for what were admittedly wrongful
acts.
[6] It was also contended in
argument that the respondent should be held liable for the wrongful
acts of the policemen whether they
were acting in the course of their
employment or not. No convincing argument was, however, advanced to
sustain this submission, or
to show why the common law should be
developed so as to impose an absolute liability on the state for the
conduct of its employees
committed dishonestly and in pursuit of
their own selfish interest. The appellant contended that the
policemen concerned were under
a duty to inform the investigating
officer of the information that they had obtained concerning the
whereabouts of the money and
that their failure to do so was a breach
of their duties for which the respondent could be held liable. This
contention, however,
lacked the necessary factual basis. There is no
evidence on the record to show how the three policemen came by this
knowledge and
nothing to support a finding, albeit by inference, that
they did so in the course of their duties. In the final analysis the
appellant’s
complaint is that the respondent should be held
vicariously liable for the loss suffered in consequence of the
misappropriation simply
because the thieves were policemen. It was
not denied that the police service was under a constitutional duty
“to protect and secure
the inhabitants of the Republic and their
property” and was accordingly obliged to hand back to the appellant
any of the stolen
money that it managed to recover. The point at
issue was, however, whether these duties were breached when the rogue
policemen went
to Tzaneen and stole the appellant’s money: were
they acting as policemen or were they pursuing their own interests?
[7] The question whether the
respondent should have to answer for the misdeeds of the three
policemen is an intriguing one. Indeed,
questions of this kind are
often extremely difficult to resolve and the law reports are replete
with fascinating examples of the
infinite variety and complexity of
the kinds of cases that have engaged the courts for many years. The
distinctions are subtle and
the dividing lines are often feint –
and debatable – as the judgment of Farlam JA in the instant case
and the authorities cited
illustrate.
8
Cases such as the present one, where employees deliberately set about
creating a smoke-screen of routine performance of their duties
while
actually pursuing their own different interests, often require
nuanced weighing up of the wrongdoer’s subjective intention
against
the objective manifestations of his or her carrying out official
duties.
[8] In this particular instance
the enquiry was not assisted by the way in which the appellant’s
cause of action was set out in
its pleadings. The hypothesis on which
the case was launched was that the rogues were the investigating
officers who had recovered
the money in Tzaneen while acting in the
course of their employment and within the scope of their duties
towards the respondent.
In these official capacities they were
allegedly obliged to have taken custody of the money found and
ensured that it was returned
to the appellant. On the finding of the
SCA, that is not at all what happened. The rogues were at no stage
officially involved in
the investigation of the robbery or the
recovery of its proceeds. In relation to the appellant’s affairs
they were on the SCA’s
finding never about the business of the
South African Police Service: from start to finish they were engaged
in their own nefarious
scheme and their ostensible exercise of police
powers and performance of police duties were intended solely as
camouflage. On the
crucial question of vicarious liability Farlam JA
accordingly concluded that the taking of the money was not conduct
for which the
respondent had to answer.
[9] It is not suggested that in
determining the question of vicarious liability the SCA applied any
principle which is inconsistent
with the Constitution. Nor is there
any suggestion that any such principle needs to be adapted or evolved
to bring it into harmony
with the spirit, purport or objects of the
Bill of Rights. On the contrary, counsel for the appellant expressly
conceded that the
common law test for vicarious liability, as it
stands, is consistent with the Constitution. It has long been
accepted that the application
of this test to the facts of a
particular case is not a question of law but one of fact, pure and
simple.
9
The thrust of the argument presented on behalf of the appellant was
essentially that though the SCA has set the correct test, it
had
applied that test incorrectly – which is of course not ordinarily a
constitutional issue. This Court’s jurisdiction is confined
to
constitutional matters and issues connected with decisions on
constitutional matters.
10
It is not for it to agree or disagree with the manner in which the
SCA applied a constitutionally acceptable common law test to the
facts of the present case. As was made plain in Boesak’s case:
11
“
A challenge to a decision of
the SCA on the basis only that it is wrong on the facts is not a
constitutional matter. . . Unless there
is some separate
constitutional issue raised. . . no constitutional right is engaged
when an appellant merely disputes the findings
of fact made by the
Supreme Court of Appeal.”
[10] It follows that this Court
has no jurisdiction to entertain the appellant’s complaint. One
must however sympathise with the
appellant. The criminal justice
system has certainly let it down badly and repeatedly. The robbery
was in the first place only made
possible by the treachery of two
security guards. Their involvement must have been apparent from the
outset, yet it took some two
months before the investigation got
around to visiting their parental home. Even worse, at the trial
there was unchallenged evidence
that the police shortly after the
robbery actually searched the room where the security guards had
hidden their share of the spoils
but somehow failed to find it hidden
under the mattress. The three scoundrels were moreover policemen who
used police facilities
and police authority to perfect their crime.
When they were caught the prosecution case was fecklessly pursued and
no effective steps
were at any stage instituted by the police to
force its own rotten apples to disgorge their ill-gotten gains.
[11] All in all, therefore,
although the appeal falls to be dismissed, there is no warrant for
penalising the appellant regarding
costs.
The order
[12] The appeal is dismissed.
There is no order as to costs.
Chaskalson CJ, Langa DCJ,
Goldstone J, Mokgoro J, Ngcobo J, O’Regan J, Sachs J and Yacoob J
concur in the judgment of Kriegler J.
For the appellant: B Pretorius
and PE Jooste instructed by
Thys Cronje Inc, Pretoria.
For the respondent: W. Trengove
SC instructed by
the State Attorney, Pretoria.
1
The
judgment is reported as
Minister
van Veiligheid en Sekuriteit v Phoebus Apollo Aviation BK
2002
(5) SA 475
(SCA).
2
One
was stationed at Alexandra and the other two at Rosebank.
3
As
to which, see section 25 of the Constitution.
4
Section
205(3) of the Constitution provides as follows:
“The objects of
the police service are to prevent, combat and investigate crime, to
maintain
public order, to
protect and secure the inhabitants of the Republic and their
property, and to
uphold and
enforce the law.”
5
The
subsection reads as follows:
“When
interpreting any legislation, and when developing the common law or
customary law,
every court,
tribunal or forum must promote the spirit, purport and objects of
the Bill of
Rights.”
6
Carmichele
v Minister of Safety and Security and Another (Centre for Applied
Legal Studies Intervening)
2001
(10) BCLR 995
(CC); 2001 (4) SA 938 (CC).
7
Section
25(1) and (2) of the Constitution read as follows:
“(1) No one may
be deprived of property except in terms of law of general
application,
and no law may
permit arbitrary deprivation of property.
(2) Property may
be expropriated only in terms of law of general application-
(a) for a public
purpose or in the public interest; and
(b) subject to
compensation, the amount of which and the time and manner of
payment of which
have either been agreed to by those affected or decided or
approved by a
court.”
8
See
for example
Minister of Police v Rabie
1986 (1) SA 102
(AD);
Minister of Law and Order v Ngobo
1992
(4) SA 822 (AD);
Feldman (Pty) Ltd v Mall
1945 AD 733
;
ABSA Bank Ltd v Bond
Equipment (Pretoria)(Pty)
Ltd
[2000] ZASCA 136
;
2001
(1) SA 372
(SCA);
Ess Kay Electronics Pte Ltd and Another v First
National Bank of Southern Africa
Ltd
2001
(1) SA 1214
(SCA);
Minister Van Veiligheid en Sekuriteit v
Japmoco BK h/a Status Motors
2002 (5)
SA 649
(SCA).
9
This
is made plain in the cases cited in n 8 above.
10
See
section 167(3) of the Constitution, which provides as follows:
“The
Constitutional Court–
(a) is the
highest court in all constitutional matters;
(b) may decide
only constitutional matters, and issues connected with decisions on
constitutional
matters; and
(c) makes the
final decision whether a matter is a constitutional matter or
whether an
issue is
connected with a decision on a constitutional matter.”
11
S
v Boesak
[2000] ZACC 25
;
2001 (1) BCLR 36
(CC) para 15
[2000] ZACC 25
; ;
2001 (1) SA 912
(CC).