Case Summary: Minister van Polisie v Ewels

 

Minister van Polisie v Ewels

1975 (3) SA 590 (A) [8]

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This case surrounded the question of whether the police are responsible for stopping an assault that takes place in their presence. The case summary attempts to follow the basic FIRAC rubric and includes as much pertinent information as possible. It is, however, not a substitute for self-study. We're only trying to help. Good luck! 😉✌ (Tip: Use the sidebar to browse other case summaries on this subject)

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Facts

• Fellow police officers stood and watched idly as an off-duty police sergeant violently assaulted an ordinary citizen in a police station;

• It would have been reasonably possible, even easy, to have prevented or put an end to the attack.

• The respondent sued and won damages from the appellant and this is an appeal of that judgement.

Issue

Did the fellow police officers act wrongfully in their omission to stop the attack, i.e. does a policeman/woman on duty, if (s)he witnesses an assault, have a duty to come to the assistance of the person being assaulted?

Rule

There is a special relationship between the police and ordinary citizens which places a legal duty on the police to prevent harm to the latter. An omission is regarded as unlawful conduct when the circumstances of the case are of such a nature that the omission not only incites moral indignation but also that the legal convictions of the community demand that the omission ought to be regarded as unlawful and that the damage suffered ought to be made good by the person who neglected to perform a positive act.

Analysis

In laying down the above rule, the court first made it clear that wrongfulness in delict does not arise solely from an omission. The special circumstances which resulted in the duty upon the fellow police officers to prevent the assault on the respondent were: (I) their relationship to, and therefore their control over him or, alternatively, (ii) their control over the premises where the assault occurred, both instances of control being derived from legislation.

The essential question is whether the convictions of the community expect police officers to act positively to prevent or stop an assault in the given circumstances. This will be the case where an omission is not only considered morally obscene but is also regarded as wrongful.

Holding

Accordingly, the issue was answered in the affirmative. 

The duty which rested on the policemen, to have come to the assistance of the respondent, was a legal duty and, as it was a failure which had taken place in the course of the policemen's duty, the appellant was liable for the damages claimed by the respondent.

The appeal was dismissed with costs.🍎