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t be regarded as unlawful and that the damage suffered be made good by the person who neglected to perform a positive act 66 to make a determination as to whether or not there is unlawfulness the question is not whether there was the usual negligence of the bonus paterfamilias the question is whether regard being had to all the facts there was a duty in law to act reasonably in ewels a citizen was assaulted in a police station by an off duty officer in the presence of other officers it was held by the court on the facts of this case that a policeman on duty if he witnesses an assault has a duty to come to the assistance of the person being assaulted the failure of the police to do so made the minister of police liable for damages the flexible test in ewels was adopted into criminal law in s v gaba 67 crystallised categories of liability for omissions edit in deference to the principle of legality authors and commentators on criminal law usually rely on those established categories of liability which have emerged from the case law over the years these categories of liability may be regarded as the crystallised legal convictions of the community referred to in ewels a legal duty to act may exist where a statute or the common law places such a duty on the accused for example to fill in a tax return 68 where prior positive conduct by the accused creates a potentially dangerous situation 69 where the accused has control of a potentially dangerous thing or animal where a special or protective relationship exists between the parties whether through natural relationship contract or some other conduct whereby the accused deliberately or even tacitly assumes such a duty 70 and where a person occupies a certain public or quasi public office which imposes on him within the course and scope of his employment a duty to act like the office of policeman prior positive conduct edit in s v russell 71 russell was an employee of the department of water affairs together with his supervisor and co workers he was unloading pipes onto a lorry at a railway station the workers were using an overhead crane parked under the railway s electric power lines because of the danger the power had been switched off while russell s supervisor and co workers were away having lunch the power was turned on again a railway employee told russell to warn the crane operator about this that is about the danger of operating a crane under a live electric wire when the workers returned russell accepted this instruction without pointing out that he was not the supervisor and failed to pass on the warning when loading resumed this omission constituting negligence led to one death as the crane touched the power line and the operator was electrocuted russell was convicted of culpable homicide and appealed to the high court then the supreme court which held that the way in which russell had apparently accepted the warning had created a potentially dangerous situation that being the case he had attracted a legal duty to pass on the warning by failing culpably in this duty he was clearly negligent his conviction of culpable homicide was confirmed control of a dangerous thing or animal edit in s v fernandez 72 the court held that the appellant had been negligent in mending a cage from which a vicious baboon had subsequently escaped which subsequently bit a child who subsequently died the appellant must have foreseen the likelihood of an attack in the event of the baboon s escaping he was the court held rightly convicted of culpable homicide for failing take steps to prevent this that is to say for failing to keep the cage door in good repair protective relationship edit in minister of police v skosana 73 there was a negligent delay in furnishing medical aid to the deceased whose widow established on a balance of probabilities that he would not otherwise have died she was granted damages the duty to protect detainees the court held extends further than merely preventing them from being assaulted there is also for example the duty to obtain medical treatment for them when necessary public or quasi public office edit the police in minister of law order v kadir 74 failed to collect information which would have enabled the seriously injured respondent to pursue a civil claim against the driver of the other vehicle the minister raised an exception contending that there was no legal duty on the police to collect such information the court a quo dismissed this argument finding that the community would consider otherwise on appeal however the sca held that society understood police functions to relate principally to criminal matters maintaining law and order and preventing and detecting and investigating crime the police are not designed to assist civil litigants society would baulk at the idea of holding policemen personally liable for damages arising out of a relatively insignificant dereliction the respondent had not proved the existence of a legal duty as for the state s duty to protect persons from violent crime there are a number of suggestive delictual cases the constitutional court in carmichele v minister of safety security 75 found that the state could be held delictually liable for damages arising out of the unlawful omissions of its servants in casu the conduct of the police and a prosecutor had resulted in the release of a person charged with rape on his own recognisance this person had subsequently assaulted the complainant snyman for one has noted the court s emphasis on section 39 2 of the constitution which provides that every court must promote the spirit purport and objects of the bill of rights this he argues may perhaps one day open the way for holding an individual police officer liable for a crime such as culpable homicide flowing from her negligent omission to protect a person from the real possibility of harm 76 in minister of safety security v van duivenboden 77 the supreme court of appeal held that while private citizens may be entitled to remain passive when the constitutional rights of other citizens are threatened the state has a positive constitutional duty imposed by section 7 of the constitution to act in protection of the rights in the bill of rights the existence of this duty necessarily implies accountability where the state represented by persons who perform its functions acts in conflict with section 7 the norm of accountability must of necessity assume an important role in determining whether or not a legal duty ought to be recognised in any particular case 78 this norm need not always translate constitutional duties into private law duties enforceable by an action for damages there are other remedies available for holding the state to account where however the state s failure to fulfil its constitutional duties occurs in circumstances that offer no effective remedy other than an action for damages the norm of accountability will ordinarily demand the recognition of a legal duty unless there are other considerations affecting the public interest which outweigh that norm 79 the police in minister of safety security v hamilton 80 were negligent in their consideration and approval of an application for a firearm licence accepting the correctness of information supplied by the applicant they had a legal duty to exercise reasonable care in considering investigating recommending and ultimately granting such applications their failure properly to exercise this duty had resulted in the issuing of a firearm licence to an unfit person who subsequently shot the respondent the state was held to be delictually liable for the resultant damages in van eeden v minister of safety and security 81 the appellant was assaulted raped and robbed by a known dangerous criminal who had escaped from police custody the court held that the state was obliged to protect individuals by taking active steps to prevent violations of the constitutional right to freedom and security of the person inter alia by protecting everyone from violent crime it was also obliged under international law to protect women specifically from violent crime citation needed in light of these imperatives the court could no longer support the requirement of a special relationship between the plaintiff and the defendant for the imposition of a legal duty the police have a duty to protect the public in general from known dangerous criminals in their custody additional requirements edit once it has been established that the accused had a legal duty to prevent the harm he will be liable for his failure to do so only if he had the necessary means and opportunity to prevent it from occurring and if the harm that did occur is directly attributable to his unlawful omission causation edit crimes of consequence should be distinguished from crimes of circumstance a crime of circumstance is one in which it is the situation which is criminal like the mere possession of an offensive weapon rather than any result like murder which flows from the situation a crime of consequence or a materially defined crime is one in which the conduct itself is not criminal but in which the result of that conduct is it is not unlawful merely to throw a stone if it is thrown at and hits a person it is the precise nature of the crime furthermore is contingent on the result if the stone causes serious injury the crime will be grievous bodily harm if it kills a person the crime could be murder or culpable homicide 82 causation is not a general element of liability 83 causation describes the way in which the definitional elements of some crimes are met 84 in all consequence crimes the state bears the onus of proving beyond a reasonable doubt that there is a sufficient link between the accused s initial conduct and the prohibited consequence if there is no causal link or if the link is too tenuous the accused will not be guilty of the crime although he may perhaps be guilty of an attempt to commit that crime or of some other offence there are two forms of causation which have to be proven they form part of a two stage causation enquiry the state must first establish whether or not there is a causal link or nexus between the accused s initial conduct and the consequence in question if there is no causal link there can be no liability that is the end of the matter if there is a causal link the state proceeds to the next step the next step is to consider whether the link thus established is sufficiently close and strong the closeness and strength of the link must be such that as a matter of law and policy the accused ought to be held liable for his role in producing that consequence the two stage enquiry may be broken down into two elements a factual element the first stage and a legal or policy element the second factual causation edit the first stage of the enquiry is aimed at determining whether the accused s conduct was the actual or scientific cause of the consequence in that the consequence would not have occurred either at all or when it did had not it been for the accused s conduct to decide this the court will apply the condictio sine qua non test also known as the but for theory a condictio sine qua non is a condition without which something that is to say the prohibited situation would not have materialised literally the condition without which not 85 commission edit in the case of a positive act the but for test holds that if not for that act the unlawful consequence would not have ensued the question to be asked is this can the act be notionally or hypothetically eliminated without the disappearance of the consequence at the time of the consequence from the sequence of events which led to the consequence if not the accused s conduct was a factual cause of the consequence if however there is a reasonable possibility that the consequence would have occurred in any event the accused s conduct did not factually cause the consequence and the accused will not be liable omission edit in the case of an omission the condicio sine qua non theory considers whether but for the omission the consequence would not have ensued in other words we notionally or hypothetically insert the requited positive act into the sequence of events in place of the accused s inaction and then consider whether or not the consequence in question would have occurred when it did if the consequence would not have occurred the accused s omission is proved to have been the factual cause of that consequence if however there is a reasonable possibility that the consequence would have occurred in any event the accused cannot be held to have caused that consequence and will not be held liable in s v van as 86 van as was a police officer one night he and a number of other policemen arrested a man for drunken driving and took him into custody while the police were locking the suspect in a patrol van the five young children in his company disappeared the detainee begged the police to look for them the police made a cursory search but failed to find them three of the children managed to make their way home but the following morning two of them were found dead from exposure the police including van as were charged with and convicted of culpable homicide on appeal however the appellate division reversed the trial court s decision it held that although it would have been reasonable to continue the search and make further enquiries it had not been proved beyond reasonable doubt that the children would have been found by a proper search had one been undertaken it had also not been so proven that the failure to institute such a search was responsible for the children s deaths the state then was unable to show that the deaths had been factually caused by the omission of the police in minister of police v skosana noted earlier there was a negligent delay in furnishing medical treatment to a prisoner who had been injured in a car accident and was then arrested for drunken driving he ultimately died of his wounds his widow brought a claim for damages arising out of his wrongful death and was able to establish on a balance of probabilities that he would not have died but for that delay there was adequate proof in other words that the deceased would probably have survived had he received medical treatment sooner having thus proved that the delay was a conditio sine qua non of her husband s demise the widow was found to be entitled to damages legal causation edit the steps to take or questions to ask in seeking to establish causation are the following having regard to all the facts and circumstances was x s conduct the factual cause of y s death if so should the accused be held legally responsible for the consequence either alone or in combination with other causal factors on the one hand the law does not want individuals to escape liability for the natural and probable consequences of their conduct on the other hand the law does not seek to hold individuals liable for consequence...