STATE LIABILITY FOR MUTINOUS ACTS OF POLICE AND MILITARY OFFICERS: A CRITIQUE OF LESOTHO AND ZIMBABWE CASES IN LIGHT OF THE MODERN TEST FOR VICARIOUS LIABILITY IN SOUTH AFRICA

Abstract

A mutiny by soldiers or police officers is no doubt, a serious criminal offence. So is the rape of a young girl or woman by police officers, or shooting someone by the police or military personnel without lawful authority, or supplying military hardware by a defence official charged with guarding the armoury to those who use them for armed robbery purposes? However, if the State as the employer is held vicariously liable for these acts of misconduct, why should it be absolved from liability for the wrongful acts of the soldiers or police officers for injuries caused in a situation of mutiny? It seems clear from the case law that an argument that the State is vicariously liable in such circumstances is bound to hit a dead end if it is based on the old “standard test” which contemplated only negligent, at most, reckless conduct of the employee. This was the beginning of the collapse of the arguments of the plaintiffs in the Lesotho Court of Appeal in Chabeli v Commissioner of Police; the High Court in Seoane v Attorney General; and the Harare High Court in Munengami v Minister of Defence, where the question of the liability of the State was canvassed on the basis of the old “standard test” for determining vicarious liability. It is submitted that if these cases were argued around the “close connection” test as enunciated by the Constitutional Court in K v Minister of Safety and Security and affirmed in F v Minister of Safety and Security, the outcomes might have been different. It seems compelling, therefore, that in analysing these Lesotho and Zimbabwean cases, one must do so with the hindsight of the modern test for determining vicarious liability in South Africa, where the conduct of the employee is not merely negligent in character but deliberate or dishonest in nature.