Research_Law (AutoRecovered).edited.docx - TABLE OF...

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TABLE OF CONTENTS1.IntroductionThe landmark decision that was reached in the Constitutional Court on the casesCarmichele v Minister of Safety & Security & another1together with theK vsMinister of Safety & Security2has been used as the basic representation and thesteps towards the remedy of violence. These are the journey that the people havetaken towards modernizing the delictual liability law of the state that solves theproblems of human rights and the violence. Domestic violence and crime againsthuman rights have been key in vatrious judicial rulings in the republic of socuthAfrica. Several offences have been committed by the police officers while theyare discharging their duties.As a result, the court has had to reformulate the teststhat determine the vicarious liabilities for various wrongful acts, negligence, orintentional wrongdoings that are committed by the public officers.3The officers,in this case, included the police forces, wanted to make an effort to bring thepolicy framework and support the objects and the Bill of Rights. The clarion callsfor the supreme courts on the high court to have the development of the commonlaw is in line with the section 39(2) of the country’s constitution that isconsolidated and based on the subsequent cases of the police.4This paper will consider the development of the common law throughout theconstitution with a specific focus on the government vicarious liabilities in theacts and omissions that are focused on the police officers.5The experiences that come from the other Commonwealth countries are alsoanalyzed and discussed in this matter.2.The legacy ofEwelsThe factual case that involved minister in the case ofvan Polisie v Ewelswasalso a massive landmark decision that involved someone who was assaultedmassively bythe officers. In the case, Ewels had been assaulted when he was in acafe by an off-duty police sergeant known as Bernard. He, later on, went to apolice station so that he could lay a charge on his assault. In the process, Bernardfollowed him and assaulted him again in the presence of other police officers whowere on duty during his report. As a result, Ewels went ahead and sued theminister in delict so that he could hold him liable vicariously. Ewels sued himbecause of the failures showed by the police officers who were manning the12001 (10) BCLR 995 (CC) at 1014 par 56.22005 (9) BCLR 835; 2005 (6) SA 419(CC) (hereinafter NK)3ABSA Bank Ltd v Bond Equipment (Pretoria) (Pty) Ltd2001 (1) SA 372 (SCA)4See Minister of Safety & Security v Van Duivenboden 2002 (6) SA 431 (SCA); Van Eeden v Minister of Safety &Security (Women’s Legal Centre Trust, as Amicus Curiae) 2003 (1) SA 389 (SCA).5In S v Thebus & another 2003 (6) SA 505 (CC); 2003 (10) BCLR 1100 (CC) at para 28, Moseneke J noted that therewere at least two instances in which the need to develop the common law under s 39(2) of the Constitution could arise:"The first would be when a rule of the common law is inconsistent with a constitutional provision. The

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Term
Fall
Professor
Agnes shark
Tags
Law, SCA, Minister of Safety Security

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