Phoebus Apollo Aviation CC v The Minister of Safety and Security

The appellant corporation was robbed of a large sum of money in November 1998 when an armed gang gained access to the home of the appellant's controlling member in Midrand. The investigating officer traced part of the stolen money to the home of the father of two robbers near Tzaneen in mid-January 1999. However, the money had already been taken by three dishonest police officers who had no official involvement in the investigation and were not stationed at Midrand (one was stationed at Alexandra and two at Rosebank). These three officers, having learned of the money's whereabouts, drove to Tzaneen in a police car on the pretext of being about police business and induced the father under colour of their authority to hand over the money. None of the stolen money was ever recovered. The High Court in Pretoria awarded the appellant damages against the respondent, but the Supreme Court of Appeal reversed this order.

• Whether the respondent (Minister of Safety and Security) is vicariously liable for the conduct of three dishonest police officers who stole recovered money
• Whether the Constitution requires development of the common law relating to vicarious liability of the state for delicts committed by police officers
• Whether the appellant's constitutional property rights under section 25(1) of the Constitution were infringed
• Whether the constitutional duties imposed on the South African Police Service under section 205(3) of the Constitution create liability for acts of police officers acting outside the scope of their employment
• Whether the Constitutional Court has jurisdiction over a dispute concerning the application of common law principles to facts

The appeal was dismissed. There was no order as to costs.

The binding legal principles established are: (1) The Constitutional Court's jurisdiction under section 167(3) of the Constitution is confined to constitutional matters and issues connected with decisions on constitutional matters; (2) A challenge to a decision of the Supreme Court of Appeal based only on the ground that it is wrong on the facts is not a constitutional matter unless some separate constitutional issue is raised; (3) Section 25(1) of the Constitution, which protects property rights, is aimed at protecting private property rights against governmental action and is not engaged where property is taken by criminals or by state employees acting in pursuit of their own selfish interests outside the scope of their employment; (4) The application of the common law test for vicarious liability to the facts of a particular case is a question of fact, not law; (5) Where the common law test for vicarious liability is consistent with the Constitution, there is no basis for the Constitutional Court to intervene in its application to facts.

Kriegler J expressed sympathy for the appellant, noting that the criminal justice system had failed the appellant badly and repeatedly. The Court observed that: the robbery was facilitated by the treachery of two security guards whose involvement must have been apparent from the outset, yet it took two months before the investigation visited their parental home; there was unchallenged evidence that police shortly after the robbery actually searched the room where the security guards had hidden their share of the spoils but somehow failed to find it hidden under the mattress; the three wrongdoers were policemen who used police facilities and police authority to perfect their crime; when they were caught the prosecution case was fecklessly pursued; and no effective steps were instituted by the police to force its own members to disgorge their ill-gotten gains. These observations, while sympathetic to the appellant, did not form part of the legal reasoning for the decision and did not warrant a different outcome regarding costs given the jurisdictional bar.

This case is significant in South African jurisprudence for clarifying the boundaries of the Constitutional Court's jurisdiction under section 167(3) of the Constitution. It establishes that the Constitutional Court cannot hear appeals that merely challenge factual findings or the application of constitutionally compliant common law principles to facts, even when constitutional provisions are invoked. The case reinforces that disputes over vicarious liability that do not involve constitutional development of the common law fall outside the Constitutional Court's jurisdiction. It also confirms that section 25(1) property rights are directed at protection against governmental deprivation, not general criminal conduct. The judgment distinguishes Carmichele and limits its application to cases involving wrongfulness rather than vicarious liability for admittedly wrongful conduct.