Minister of Police v Rabie1986 (1) SA 117 (A). is an important case in the South African law of delict. It was heard in the Appellate Division on September 3, 1984, with judgment handed down on September 27, 1985. The presiding officers were Jansen JA, Joubert JA, Cillié JA, Van Heerden JA and Vivier AJA. The appellant was represented by the State Attorney, Johannesburg. The respondent's attorneys were Mather & Sim, Johannesburg, and McIntyre & Van der Post, Bloemfontein.

The central issue was the extent of the liability of the Minister of Police for wrongful acts committed by a policeman. In an appeal by the Minister of Police against an award of damages by the court a quo, it was contended that the sergeant's conduct had been unrelated to his police work. The Appellate Division dismissed the appeal, referring to the proposition that a master (in this instance, the State) who does his work by the hand of a servant (in this instance, the sergeant) creates a risk of harm to others if the servant should prove to be negligent or inefficient or untrustworthy. The sergeant's conduct, on the facts, had fallen within the purview of the risk created by State in employing him, and it was evident to the court that the sergeant's employment was conducive to the wrongs he committed. The State, therefore, was found to be vicariously liable for those wrongs.

The case is cited most often for the following passage:

It seems clear that an act done by a servant solely for his own interests and purposes, although occasioned by his employment, may fall outside the course or scope of his employment, and that in deciding whether an act by the servant does so fall, some reference is to be made to the servant's intention.Estate Van der Byl v Swanepoel 1927 AD 141 at 150. The test is in this regard subjective. On the other hand, if there is nevertheless a sufficiently close link between the servant's acts for his own interests and purposes and the business of his master, the master may yet be liable. This is an objective test.

This test, although frequently applied, "has not always been followed."K v Minister of Safety and Security 2005 (6) SA 419 (CC) at para 33. In K v Minister of Safety and Security,2005 (3) SA 179 (SCA). for example, the Supreme Court of Appeal formulated the test somewhat differently, saying that the question to be asked is whether the deviation is of such a degree that it can still be said the employee is exercising the functions to which he was appointed or carrying out some instruction of the employer. When K v Minister of Safety and Security went before the Constitutional Court, O'Regan complained that "variations of the [Rabie] test have proliferated, and have resulted in uncertainty,"Para 33. and sought to remove this uncertainty by applying the test and holding its objective element, approached with the spirit, purport and objects of the Constitution in mind, to be sufficiently flexible to incorporate constitutional as well as other norms. It required the court applying it to articulate its reasoning for its conclusions as to whether there was a sufficient connection between the wrongful conduct and the employment. Thus developed, O'Regan J held, the application of the test was not at odds with the constitutional order.Paras 44–45.

Facts About thirty minutes into New Year's Day 1981, André Rabie, the respondent in this matter, was stopped by one Albertus Arnoldus Van der Westhuizen, a sergeant employed in the South African Police Force as a mechanic to repair police vehicles, who accused him of attempting to break into a CNA store. The sergeant was at the relevant time off duty, in plain clothes, on the scene in his private vehicle and in pursuance of his own interests. Although he identified himself to Rabie, and purported and intended to act, as a policeman, he was in fact actuated only by malice. Van der Westhuizen proceeded to assault, arrest and detain Rabie in prison. Rabie was duly prosecuted but ultimately acquitted. Van der Westhuizen's actions were found by the court to be totally self-serving and mala fide.

Rabie instituted and later succeeded in an action for damages based on section 1 of the State Liability Act.Act 20 of 1957. In the Witwatersrand Local Division, Goldstone J held the Minister of Police and Van der Westhuizen to be jointly and severally liable. The former appealed.

Arguments

Appellant In the Appellate Division, JJ Wessels argued that Van der Westhuizen had acted maliciously in assaulting, arresting and charging Rabie, without having any reason to do so. This he had done out of spite or ill-will, brought on by factors unknown, but it was speculated that it could have been related to his experience earlier on in the evening, when he had been ejected from the home of his ex-parents-in-law, who lived in the area and had been hosting a New Year's Eve gathering. There could be no suggestion, Wessels continued, that Van der Westhuizen had reasonably suspected that the respondent was attempting to break into the CNA. The conclusion must be that Van der Westhuizen was acting without any reasonable cause and out of pure malice at the time of the arrest and assault.

The court a quo, Wessels noted, had found Van der Westhuizen to have been acting within the course and scope of his employment when he arrested and assaulted the respondent, and that Van der Westhuizen had "also acted as servant of the State in detaining the plaintiff." Goldstone J had erred, however, in Wessels's view, by overlooking the fact that Van der Westhuizen had not acted in pursuance or in the execution of any duties imposed upon him by the Police ActAct 7 of 1958. or his employer, but that he had arrested and assaulted the respondent without any reasonable cause, and had therefore acted maliciously. The judge a quo had also erred, according to Wessels, in his finding that the appellant was liable merely because Van der Westhuizen also acted "as a servant of the State." The court was at this point referred to the case of Minister of Police v Mbilini.1983 (3) SA at 711D.

The sole point for decision, contended Wessels, was whether or not the appellant could be held vicariously liable for the conduct of Van der Westhuizen. The position of policemen committing delicts had been considered in a number of previous cases, including Mhlongo and Another v Minister of Police,1978 (2) SA 551. Minister van Polisie en 'n Ander v Gamble en 'n Ander1979 (4) SA at 764H. and Magubane v Minister van Polisie.1982 (3) SA 542. The functions of the South African Police were set out in section 5 of the Police Act; their powers and duties were enumerated in section 6.See Hiemstra Suid-Afrikaanse Strafprosesreg at 113.

It fell now to be decided what were the duties of a private employee in relation to his employer and the employee's delict and duties of employment or instruction.See Mkize v Martens 1914 AD 382; Estate Van der Byl v Swanepoel 1927 AD 141; Scott Middellike Aanspreeklikheid in die Suid-Afrikaanse Reg at 139, 159; Feldman (Pty) Ltd v Mall 1945 AD at 742, 753, 756, 780, 783, 784, 787; Moosa v Duma and the Vereeniging Municipality 1944 TPD 30; Germishuys en 'n Ander v Van Heerden 1958 (2) SA 99; Magubane v Minister of Police 1982 (3) SA at 548D; Sahanga v Dupont NO 1965 (2) SA 404 (headnote); Khoza v Minister of Justice 1964 (3) SA at 82H, 83D; Masikane v Smit and Another 1965 (4) SA at 297; Komane v Van der Merwe 1941 (2) PH K62. Van der Westhuizen was not acting in terms of the Police Act at the time of the incident, and he was not under the supervision of officers of the Police Force, but was busy, Wessels argued, with an act unrelated to his employment with the Department of Police; he was engaged upon a private and personal enterprise. Wessels said that this was borne out when the test enunciated in the case of Ongevallekommissaris v Onderlinge Versekerings-Genootskap (AVBOB)1976 (4) SA 446. was applied: namely, that of "dominante indruk."

Wessels thought it clear that Van der Westhuizen had acted maliciously, in that he had arrested and assaulted respondent without any reason. Under these circumstances, his conduct would be comparable with the policeman's actions in the case of Germishuys. Van der Westhuizen's conduct had nothing to do with police work; it was a private action. If, for instance, Van der Westhuizen had personally broken into the CNA and stolen goods, the CNA would not have been able to hold the appellant liable for the damages. Why then, Wessels demanded, should the appellant be held liable for the assault and arrest?See Scott Middellike Aanspreeklikheid in die Suid-Afrikaanse Reg at 197.

The next question to be decided was what the appellant's position was in regard to the detention of respondent. Section 50 of the Criminal Procedure ActAct 51 of 1977. regulates the procedure after arrest.See, in particular, s 50 (1). As soon as an accused is brought to the police station, and a charge laid against him, a new decision has to be taken by the police: whether he should be detained or not. Even if the arrest and detention up to that stage were unlawful, Wessels continued, the detention after the decision to prosecute can be lawful, if the decision to prosecute was lawful: that is to say, taken bona fide on reasonable grounds. Only when the police act mala fide, without reasonable and probable cause, can an action for unlawful detention against the appellant succeed for the time that the respondent was held in custody in the police cells.See Donono v Minister of Prisons 1973 (4) SA at 262. In this case, Wessels concluded, the action of the police was justified as there was a statement in the docket by Van der Westhuizen which reasonably showed an attempt by respondent to break into the CNA, whilst the respondent had made a statement saying that he did not wish to say anything at that stage but that he would make his statement in court.

In so far as the claim for malicious prosecution was concerned, Wessels cited for the elements of malicious prosecution the fifteenth volume of Joubert's The Law of South Africa381 and McKerron's The Law of Delict7th ed at 263. In so far as the position of the appellant was concerned in regard to the malicious prosecution, the respondent could not succeed against the appellant unless he proved that Van der Westhuizen had acted within the course and scope of his employment when he made the statement at the police station. What had already been submitted in regard to vicarious liability, Wessels argued, was therefore also applicable in this regard. He noted also that it was not only policemen who were concerned with the prevention of crime and the maintenance of law and order, but also private individuals. Criminal Procedure Act 51 of 1977 authorises private persons to arrest people without a warrant and compels private persons between the ages of sixteen and sixty to assist policemen with the arrest of a person or the detention of a person if requested by a policeman.ss 42 and 47. Wessels described the statement made by Van der Westhuizen as having also been made maliciously, out of caprice, and as unrelated to any duties of a policeman in terms of the Police Act.

Respondent