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112 S. African L.J. 211 (1995)
The Role of the Police: Public Protector or Criminal Investigator

handle is hein.journals/soaf112 and id is 227 raw text is: VOL 112 THE (Part 2) SOUTH AFRICAN May 1995 LAW JOURNAL RECENT CASES THE ROLE OF THE POLICE: PUBLIC PROTECTOR OR CRIMINAL INVESTIGATOR? JONATHAN BURCHELL Professor of Law, University of Natal, Pietermaritzburg The recent judgment of the Appellate Division in Minister of Law and Order v Kadir 1995 (1) SA 303 (A) provides a startling insight into the current judicial perception of police responsibilities. The vision of police as protectors of the public has received considerable support in the past: Mtati v Minister ofJustice 1958 (1) SA 221 (A); Minister van Polisie v Ewels 1975 (3) SA 590 (A); Minister of Police v Skosana 1977 (1) SA 31 (A). Ironically, this positive judicial perception of the police developed at a time when the forces of the state were perceived by some as far removed from that of a guardian angel. In fact, they were sometimes seen as instruments of apartheid, fulfilling neither the role of guardian nor that of angel in practice. Now that a new image is being forged for the police, it is alarming to read in Kadir that a policeman is not under a legal duty to assist a person who has been severely injured in a motor accident, by recording the identification of the driver of the vehicle who may well have been instrumental in causing the accident in which the injuries were sustained. Before engaging in a critical assessment of Kadir, it is best to describe the jurisprudential milieu in which the judgment of the Appellate Division should be located. The development of delictual and criminal liability for a failure to act reflects a common pattern in the evolution of legal principle. The movement from rigid, restrictive categories of liability to flexible open-ended guidelines indicating potential liability was part of the legacy of Ewels supra. The judgment of Rumpff CJ in Ewels released the law from the straitjacket that had confined liability for omissions to cases where there was some identifiable prior conduct creating a potentially dangerous situation or where the alleged wrongdoer had control of a

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