Reconsidering the state’s liability for harm arising from crime: the potential development of the law of delict
Author Bernard Wessels
Affiliations: BA (Hons) LLB (Stell) BCL (Oxon) LLD (Stell), Lecturer in Private Law, Stellenbosch University
Source: Stellenbosch Law Review, Volume 30 Issue 3, 2019, p. 361 – 391
This article evaluates the compensatory relief South African law currently provides to crime victims. To obtain compensation for harm arising from crime, a victim may institute a common-law delictual claim against the perpetrator of the crime. Because the perpetrator is unlikely to be in a financial position to compensate, crime victims have had to develop an alternative strategy. Essentially, they have argued that it is the state, rather than the perpetrator, that should be held delictually liable for harm arising from crime. More specifically, they have argued that the state should be held vicariously liable in delict on the basis that its employees culpably and wrongfully caused the victim’s harm, either by action or inaction. This article evaluates this development of the common law and argues that the expanding delictual liability of the state for harm arising from crime is undesirable. The common-law delictual claim is not the crime victim’s only option for compensation. The Criminal Procedure Act 51 of 1977 provides crime victims with a degree of procedural assistance in claiming compensation from the perpetrator and the Prevention of Organised Crime Act 121 of 1998 seeks to introduce measures to combat organised crime activities and provides for the recovery of the proceeds of unlawful activities. The article analyses the existing statutory mechanisms to claim compensation for harm arising from crime and finds that it is unsatisfactory from a crime victim compensation perspective. Against this background, the article suggests that it may be sensible to consider an alternative method to secure compensation for crime victims. From a comparative legal perspective, the most popular alternative solution appears to be the enactment of a statutory crime victim compensation scheme. The article examines some of the theoretical concerns that require consideration, if such a proposal were to be taken seriously by the legislature.