Aanspreeklikheid vir nadeel weens regmatige owerheidshandelinge - Rus die skade maar waar dit val?

Since the vicarious liability of inter alia the minister of police for damage resulting from illegal conduct of members of the police service has been recognised, holding the prosecuting authority and similar legs of government liable for any illegal or wrongful conduct of their members should also follow and members of the public should potentially succeed in claiming damages for any wrongful inroads into their property or other interests which are supposed to be subject to the protection of the law. This contribution focuses on the question whether it is justifiable to leave the unfortunate person who suffered injury and/or damage as a result of the conduct of a state organ or its officials that is described as “lawful” and “justified” with the resulting damage and without a remedy. A reliance on res perit domino (the loss of a thing is to the prejudice of the owner) or “ieder draagt zijn eigen schade” and the presumption that the resulting damage can only be recovered by the unfortunate victim if another legal subject can be held liable for compensating the damage is nothing but hollow consolation. Holmes’ formulation is repeated so frequently that some lawyers deem it to be unquestionable: “Sound policy lets losses lie where they fall, except where a special reason can be shown for interference” (The Common Law (1923) 50). In the Telematrix case Harms JA held: “[E]veryone has to bear the loss he or she suffers. The Afrikaans aphorism is that ‘skade rus waar dit val’. Aquilian liability provides for an exception to the rule and, in order to be liable for the loss of someone else, the act or omission of the defendant must have been wrongful and negligent and have caused the loss” (2006 1 SA 461 (SCA) 468A-C). But for the special cases governed by particular indemnity contracts such as insurance or statutory indemnity provisions (such as for injury resulting from motor vehicle accidents covered by a special fund), the “normal” claimant will have to meet all the requirements of delictual liability before succeeding with a claim for damages. Such delictual claim presupposes illegal or wrongful conduct by the defendant and that this conduct complained of can be defined as blameworthy - be it based on dolus, culpa or in the case of strict liability creating an unreasonable risk. Unreasonable risk, however, does not even enter the delictual equation if the conduct was lawful, legal or justified. Any conduct justified by any of the recognised grounds for justification will consequently not provide a foundation for delictual liability. Various scenarios are discussed ranging from the prejudice suffered by the innocent bystander who unintentionally got caught in the cross fire between police and terrorists, or damage suffered by the house owner who finds that in his absence the police acting on a duly provided warrant issued on reasonable suspicion, forcefully gained entry to his house by demolishing his security gates, front door and internal security gates and then ransacked the complete interior of his erstwhile “castle”. Every citizen may appreciate that it is for the benefit and good of all if the police act vigilantly to protect the citizenry even if this encompasses forceful action to gain access to property whilst acting on a “reliable hint” that the targeted house is being used for illegal activities eg planning of terrorism and hording explosives or stockpiles of drugs. Although such conduct of the police is covered by sections in the Criminal Procedure Act 51 of 1977, and consequently is not termed illegal, no satisfactory reason is presented why the poor owner should carry the burden of the consequential damage if afterwards it materialised that the “reasonable suspicion” did not reflect the true state of affairs. No connection existed between either the owner or his property and any criminal activity. It is submitted that conduct originally defined as lawful and justified logically cannot afterwards be reclassified as illegal just to provide a foundation for a delictual claim for damages to the house owner because it is perceived to be equitable. Another foundation should be constructed to shift this burden to the entire citizenry. It is submitted that the legislature should consider enacting a special statute to provide for a reasonable shift of the burdens involved in having the luxury of a presumably well-trained and -disciplined police force safeguarding every citizen, from the injured innocent subject to the fiscus in accordance with the constitutionally guaranteed principles of equality and solidarity between all citizens. It is unacceptable to leave the unfortunate victim with the full patrimonial consequences of the result of any such state organ’s conduct if in principle all citizens are benefitting from the effects of allowing such high-risk conduct by state organs. The risk should be divided proportionally and equally among all who benefits from the state action and it is unjustifiable to leave this burden on the unfortunate innocent individual. A usable analogy is to be found in the Lex Rhodia from ca 500 BC (D 14 2 1) regarding the jettisoning of some goods carried on a vessel in danger of floundering in a severe storm at sea. Solidarity of all members of the involuntary risk community prescribed that the fortunate survivors should proportionally make a contribution to cover the loss suffered by the owner of the goods jettisoned to safeguard the rest of the load. This principle of average that has formed part of our legal history for more than 2 500 years should not even under the guise of de-colonialisation in a constitutional democracy be regarded as in conflict with the modern principles of equality, solidarity and proportionality. There is thus sound reason to formulate a new unique set of principles to interfere with the old deemed sound policy to let losses lie where they fall - solamen est miseris socios habuisse malorum “for the miserable there is consolation in having had those who shared their misery”.