Fischer v Unlawful Occupiers & others (WCC): Difficulties in seeking damages for a failure by the police to prevent unlawful occupation
Author Sarah Fick
Affiliations: Senior Lecturer, University of the Western Cape
Source: South African Law Journal, Volume 136 Issue 4, p. 676-716
The decision in Fischer v Unlawful Occupiers & others 2018 (2) SA 228 (WCC) has been labelled a ‘landmark judgment’ in the context of evictions, because it highlighted several issues that are prevalent in eviction matters. This article focuses on one of these issues — the difficulties faced by landowners who want to claim damages from the state for the police’s failure to protect their properties against unlawful occupation. In Fischer, one landowner’s claim against the Minister of Police for the failure by the police to protect the properties against unlawful occupation was dismissed, without any explanation of the law relating to how the Minister of Police might be accountable in such situations. This article explores in detail the potential difficulties faced by landowners when trying to hold the state accountable for the police’s failure to prevent unlawful occupation. More specifically, it first examines the question whether the police have a legal duty to protect private property in eviction cases. Thereafter, the article considers the requirements and potential difficulties with three potential causes of action: claims for damages arising out of administrative law, the general principles of delict, and a direct claim for constitutional damages.