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[2021] ZAWCHC 24
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Minnies v Ayshlie and Another (23032/2014) [2021] ZAWCHC 24 (12 February 2021)
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
Case
number: 23032/2014
With
case number: 12552/2013
(Consolidated
action)
Before:
The Hon. Mr Justice Binns-Ward
Hearing:
25 January; 8-9 February 2021
Judgment
: 12 February 2021
In
the matter between:
MARIUS
JACOBUS MINNIES
Plaintiff
and
HEINRICH
NOWATLYNN AYSHLIE
First
Defendant
THE
MINISTER OF
POLICE
Second
Defendant
JUDGMENT
(Delivered
by email to the parties’ legal representatives and by release
to SAFLII.
The
judgment shall be deemed to have been handed down at 10h00 on
12
February 2021.)
BINNS-WARD J:
[1]
In this common law delictual action, the
plaintiff claims
compensation in damages in respect of the injuries he suffered in a
shooting incident at the Merweville police
station on 25 July
2012.
[2]
The
plaintiff was employed as the cleaner at the police station, and it
was in that capacity that he was present there at the time
he was
shot. It was common ground that he fell to be regarded, for the
purposes of the Compensation for Occupational Injuries
and Diseases
Act 130 of 1993 (‘COIDA’), as an ‘employee’
of the second defendant, the Minister of Police.
[1]
The plaintiff’s duties encompassed cleaning the police station
and the adjoining cell block and keeping the yard tidy.
He was
shot by the first defendant, who was a police constable in the South
African Police Service stationed at Merweville.
[3]
The first defendant was on duty and in uniform
at the time of the
incident. He was handling his service issue handgun when he
shot the plaintiff.
[4]
The bullet struck the plaintiff in the head.
He lost his left
eye as a result, and I was warned by his counsel, when the plaintiff
was called to testify, that he could be hard
of hearing, reportedly
also due to the consequences of the shooting.
[5]
As the member of the Cabinet responsible
for the police service, the
second defendant has been sued on the grounds of his alleged
vicarious liability for the wrongful conduct
of the first defendant.
He delivered a special plea in which he contended that the
proceedings by the plaintiff against him
were precluded by virtue of
the provisions of s 35(1) of COIDA. He also pleaded over and
denied any liability at common law
for the plaintiff’s damages.
[6]
Section 35(1) of COIDA provides (underlining
supplied for emphasis):
Substitution of
compensation for other legal remedies
(1)
No
action shall lie by an employee or any dependant of an employee for
the recovery of damages in respect of any
occupational
injury
or disease resulting in the disablement or death of
such employee against such employee’s employer, and no
liability for
compensation on the part of such employer shall arise
save under the provisions of this Act in respect of such disablement
or death.
[7]
The parties agreed during the case management
process that the second
defendant’s special plea should be heard and determined
separately from, and before, the other issues
in the case. I
was given to understand that the case manager judge had made a ruling
in terms of rule 33(4) to that
effect, and it was on that basis
that the matter came up before me for hearing.
[8]
I was not
satisfied, however, that the separation would be convenient. It
appeared to me, and counsel were constrained to
confirm, that some of
the evidence that the parties proposed to adduce in respect of the
special plea would also be material in
respect of some of the
substantive questions in the action that have been put in dispute by
the Minister’s general plea.
This raised the prospect
that much of the same evidence would be led again at a later stage of
the action before a different judge
if the special plea were
dismissed and the matter then proceeded to trial on the merits of the
claim. I accordingly made
it clear that I was not willing to
entertain the special plea in a separate hearing while the merits of
the claim remained in issue.
The appeal court has emphasised
repeatedly that trial courts must approach the question of a
separation of issues with circumspection.
[2]
[9]
Upon being apprised of my position, the second
defendant’s
counsel intimated that the Minister might be willing to concede the
issue of liability in the case if the jurisdictional
issue raised in
the special plea were determined against him. The hearing was
consequently adjourned so that the Minister’s
instructions
might be obtained. On the resumption, the Minister’s
counsel handed up an undertaking placing on record
that the Minister
would indeed concede liability on the merits of the delictual claim
should the special plea be dismissed.
The undertaking was
expressly made subject to the Minister’s right, if so advised,
to seek to appeal any adverse determination
of the special plea.
In the light of the Minister’s undertaking, I then agreed to
entertain the special plea separately
from, and before, the
substantive questions in the case and made a fresh ruling in terms of
33(4) to that effect accordingly.
It was common ground that the
Minister bore the onus of establishing that the special plea should
be sustained.
[10]
The second defendant led the evidence of the first defendant on
the
factual circumstances of the shooting incident and also the evidence
of the police officer who had investigated the charges
brought
against the first defendant arising out of the incident of attempted
murder, alternatively under the
Firearms Control Act 60 of 2000
concerning the dangerous handling of a firearm. It suffices to
say in that regard that the first defendant was convicted
on the
alternative charge, to which he had tendered a plea of guilty.
He received a wholly suspended sentence of imprisonment.
The
first defendant’s fitness to carry a firearm was also
investigated in terms of
s 102
of the
Firearms Control Act, and
he was declared unfit to possess a firearm for a period of five
years.
[11]
The plaintiff gave evidence concerning the nature of his employment
as a cleaner and also as to the facts of the shooting incident,
including some contextual history.
[12]
The first defendant testified that he had been checking his firearm
with a view to making it safe when a shot accidentally went off
injuring the plaintiff. He described that he had been holding
the pistol up close to his face at that time. He said that the
recoil of the pistol when it was fired caused the weapon to
bash into
his face. A photograph, apparently taken by the investigating
police on the same day, was put in to illustrate
a superficial injury
to the first defendant’s cheek just below his left eye.
[13]
The first defendant conceded that he had previously given a quite
different account of the facts and admitted that he had initially
lied about how the incident had happened. It must be said
that
he persisted with his fallacious account for some time after the
incident. His false account was to the effect that
the weapon
had gone off spontaneously when he was jumping up and down. He
said that he had lied because he had been in a
state of shock and was
frightened that he might be arrested for the negligent use of his
firearm. He denied that he had been
playing the fool with his
firearm. He also denied that he had been in the habit, prior to
the incident in issue, of often
pretending to threaten people with
his firearm by pointing it at them or even pressing it up against
their bodies.
[14]
The plaintiff testified that he and the first defendant had been
what
he called ‘best friends’ at the time. They had not
only worked together at the Merweville police station
for a number of
years, they also spent time together at one another’s homes.
The plaintiff said that the first defendant
used to collect him on
most mornings and give him a lift to work. He had also shared
duty shifts with the first defendant
when he (the plaintiff) had
worked afterhours as a police reservist. He said that the first
defendant had misbehaved in the
manner I have described in the
previous paragraph during some of their shift duties when the shift
commander was absent.
The plaintiff said that he had initially
regarded the first defendant’s tomfoolery as something of a
joke but had then become
concerned that it was dangerous, and that
matters could easily go awry. He had become sufficiently
concerned about the first
defendant’s behaviour to raise it at
the monthly meeting of Merweville police reservists convened by the
local police reservist
coordinator and attended by the station
commissioner from the nearby Leeu Gamka police station to which
Merweville served as a
satellite station. He said that he had
first raised the matter at the April 2012 meeting and had followed up
at the May and
June meetings with enquiries as to whether the first
defendant had been addressed about his behaviour. It would
appear that
notwithstanding assurances that the station commissioner
would take the matter up, nothing was done about the plaintiff’s
concerns. He testified that he had searched for the minutes of
the meetings concerned but discovered that they had gone missing.
He said that the minutes of the reservists’ meetings from 2011
and 2013 were available at the Merweville police station,
but those
for the entire 2012 year were nowhere to be found.
[15]
As to the shooting incident itself, the plaintiff testified that
it
had occurred at about 9:30 in the morning. He said that he and
the first defendant had arrived at the police station for
work about
two hours earlier, and that while he went about his cleaning duties
the first defendant had left the police station
and gone into the
village. He said that when the first defendant returned to the
station he brought with him the plaintiff’s
breakfast which had
been given to the first defendant by the plaintiff’s wife whom
he had encountered at one of the local
shops while he had been away
from the police station. The breakfast consisted of a pie and a
cold drink.
[16]
The plaintiff said that he had started having his breakfast in ‘the
community service centre’ (apparently the current term for what
has historically been known as ‘the charge office’),
while the first defendant had gone outside to smoke a cigarette.
He had agreed to join the first respondent outside once
he had
finished his breakfast. He said that he then decided, when his
pie was only half eaten, to go outside and join the
first defendant.
As he opened the back door to the charge office (judged from the
photographic evidence it would appear that
it might more accurately
be called the ‘side door’), he observed the first
defendant peering around from behind the
wall at the corner of the
building. He saw that the first defendant was aiming his pistol
at him. He said that the
first defendant would have been aware
that he was coming out of the police station because opening the side
door made a distinctive
sound. The plaintiff said that seeing
the first defendant in the attitude I have just described was the
last thing he could
remember until he woke up some time later in a
hospital in George, when he discovered that he had been shot.
(I believe that
a court in this Division can take judicial notice
that George is more than 200 km away from Merweville, on the
other side
of the intervening Swartberg mountain range.)
[17]
Inasmuch as there is conflict between the versions of the incident
given by the plaintiff and the first defendant, I have no hesitation
in accepting that of the plaintiff and rejecting that of the
first
defendant. The plaintiff impressed on the witness stand as a
simple straightforward individual who answered the questions
put to
him, whether in chief or under-cross-examination, frankly and
directly. The first defendant, on the other hand, has
given
inconsistent versions of the events; and although he admitted that
his original story was a dishonest fabrication, I was
not persuaded
of the truth of his current version. He gave me the very strong
impression that he was an individual in denial
about his culpability
for the serious injuries and consequent disabilities that he had
inflicted on the plaintiff.
[18]
I found the first defendant’s description of how he had held
the weapon, supposedly to check whether it had been made safe,
improbable. It is most unlikely in my view that anyone
practiced
in the use of firearms would hold a pistol up virtually at
eye level to check whether there was a bullet in the chamber.
When demonstrating how he had been holding the weapon, the first
respondent used his hands in a manner that might have demonstrated
how someone might hold a rifle, not a handgun.
[19]
I also found it telling that the photographs taken for forensic
purposes shortly after the shooting incident showed what appeared to
be marks caused by gun powder residue on the wall at about
1.45
metres above ground level at the corner of the police station where
the plaintiff described that the first respondent had
been holding
the firearm pointing it in his direction. There was no direct
evidence as to the character of the substance
that caused the marks,
but it is evident from the key to the photographs in the police
docket that they were thought by the investigators
to be gunpowder
residue, and that indeed is the impression I formed of them on my
consideration of the photographic evidence assessed
in the context of
the rest of the evidence adduced in the hearing.
[20]
The presence of marks that appear to be of the character just
discussed
is supportive of the plaintiff’s version of events
and difficult to reconcile with that of the first defendant, whose
evidence
placed himself some distance from the wall and in an open
area when the shot went off. It would be an extraordinary
coincidence
that such marks just happened to be found there and that
they fitted in so well as corroboration of the plaintiff’s
version.
[21]
Suffice it to record therefore that my consideration of the special
plea has proceeded on an acceptance of the facts as related in the
plaintiff’s evidence.
[22]
Counsel on both sides were correctly agreed that the validity of
the
second defendant’s special plea turns on whether the injuries
sustained by the plaintiff fall to be characterised as
an
‘occupational injury’ as defined in
s 1
of COIDA;
and that by virtue thereof, the kernel of the enquiry is whether what
happened was an ‘accident’ within the
meaning of the
Act.
[23]
The term ‘occupational injury’ is defined in the Act
as
follows:
'occupational
injury'
means a personal injury sustained as a result
of an accident
and the definition of
‘accident’ is:
'accident'
means
an accident arising out of and in the course of an employee's
employment and resulting in a personal injury, illness or the
death
of the employee
.
[24]
I do not
think that the definition of ‘accident’ renders the
adjective ‘occupational’ in the term ‘occupational
injury’ redundant. On the contrary, the defined meaning
of ‘accident’ is incidental to, and thus in a sense
subordinate to, the term ‘
occupational
injury’. The coincidence of the terms and their defined
meanings go to highlight that the injuries that COIDA, as an
instrument of social legislation, is directed at providing a
compensation safety net for are those that are sustained in
circumstances
that might reasonably be regarded as evidencing the
realisation of one of the risks incidental to the injured employee’s
employment.
[3]
That is
consistent with the conclusion to which I understand the appeal court
came in the very helpful and comprehensive
review of s 35(1) and
its statutory predecessors and foreign law equivalents provided by
Navsa ADP in
MEC
for the Department of Health, Free State Province v D
[2014] ZASCA 167
(8 October
2014); 2015 (1) SA 182
(SCA);
[2015] 1
All SA 20
;
[2014] 12 BLLR 1155
; (2014) 35 ILJ 3301.
[4]
[25]
As noted in
MEC for
Health
,
[5]
‘[i]n order for a common-law claim against an employer to be
precluded, the accident must have occurred during the course
of an
employee's employment and it must also arise out of that
employment’. There is thus a two-tier test in terms
of
s 35(1) for the ‘exclusivity doctrine’
[6]
inherent in the provision to apply.
[26]
Adopting
the analysis by Rumpff JA in
Minister
of Justice v Khoza
1966 (1) SA 410
(A) at 417D-H,
[7]
there is no doubting that the plaintiff’s injuries were
sustained ‘
in
the course of
’
his employment because they were sustained while he was at his place
of employment and his presence there at the time was
for the purposes
of his employment. One tier of the test is therefore satisfied
on the facts of this case. The contentious
question is the one
that has caused difficulty in many of the previous cases in which
s 35(1) or its historical equivalents
have been in issue; that
is whether the incident in which the injuries were sustained was also
one that could reasonably be characterised
as one that ‘
arose
out of
’
his employment. It is in the latter context that the test has
sometimes been expressed as being whether it can reasonably
be held
that the occurrence of the injury to the employee in the particular
circumstances was a risk incidental to his or her employment.
[27]
The
judgment in
MEC
for Health
supra, was concerned with exactly the same question, albeit obviously
in the very different factual context of that case.
Navsa ADP
noted that ‘South African courts have not been a model of
consistency in their approach to the determination of
whether an
accident arose out of an individual’s employment’.
The learned judge’s review of the jurisprudence
amply bears out
the observation. The nature of the question, assessed in the
context of the objects of the Act, makes it
what will often be - as
the learned judge appositely observed elsewhere in the judgment - a
‘vexed’ one.
[8]
There is ‘no bright line test. Each case must be dealt
with on its own facts’.
[9]
The court is required to make a judgment call on the facts. The
proper determination of this type of question must
be grounded on a
real world appreciation, not an ivory tower assessment.
[28]
Is the risk of being shot by an errant policeman playing the fool
with his firearm an incidental risk attaching to employment as a
cleaner at a police station? I think not. No more
than it
would be, for example, in a respect of a person employed as a typist
or a clerk at a police station. One does not
ever see that sort
of employee going about their work wearing a bullet-proof vest, as
one often does uniformed members of the police
service in some
contexts, but, strikingly, not when they are doing desk duty in a
charge office.
[29]
Would a member of the public going into the community service centre
at his local police station to complain about his neighbour playing
loud music in breach of the municipal noise regulations consider
a
risk of being shot by a wayward policeman an incidental hazard of the
undertaking? Of course not. The notional possibility
of
being shot might well be there, as it sadly is in so many aspects of
life in this country, but the idea that a visit to a police
station
carries with it, as an inherent part of the exercise, the incidental
risk of being shot is farfetched in my judgment.
There is
nothing distinguishable, by way of an incidental risk of personal
injury by reason of their mere presence there, between
the position
of a person employed as a cleaner in a police station and that of a
member of the public visiting a police station
to make a report or
pay a pay a fine.
[30]
Mr
Jaga
SC, who appeared for the Minister, submitted
however that the facts of the current case are closely comparable to
those in
Khoza
supra. He submitted that regard to the
result in that case should impel the conclusion in this matter that
being shot by a
policeman handling his firearm negligently is an
incidental risk of employment in any capacity in the police service.
[31]
In my view, a careful comparison of the facts in
Khoza
with
those of this case shows that the two matters are quite
distinguishable. In
Khoza
, the employee who was shot by
a constable playing around with his firearm was another police
constable. Both of them were
engaged at the time in guarding
prisoners who were being transported in a van back to prison from a
court. The injured policeman
therefore sustained his injuries
in the context of a police operation in which he was required to work
with another armed policeman.
Having regard to the object of
the legislation (in that matter the Workmen’s Compensation Act,
which was the then applicable
statutory predecessor of COIDA), it is,
with respect, readily understandable how the appellate bench
unanimously concluded that
the risk of being injured by a work
colleague in a shooting accident was incidental to the injured
policeman’s employment.
[32]
When one is engaged to work with other employees in tasks in which
firearms might have to be used as part of the job, and in which the
employees are issued with firearms by the employer for that
contingency, it requires no stretch of the imagination to recognise
that accidental injuries might result to an employee from the
negligent discharge of one of such firearms by one of the other
employees. The risk of sustaining an injury caused in such
fashion is very recognisably incidental to the employment, and if it
were realised in the course of the employment the resultant
harm
could very understandably be said to have been incurred arising out
of such employment. It would be readily cognisable
as an
‘
occupational
injury’ in both the specially
defined and ordinary senses of the term.
[33]
The aforementioned considerations that obtained in the context of
the
facts of
Khoza
’s case are wholly lacking in the current
matter. In my judgment, the Minister has failed to discharge
the onus of proving
that the plaintiff’s injury was sustained
in an ‘accident’ as defined in COIDA. It was not
enough merely
to show that it happened while he was at his place of
work during his hours of work. The fact that the plaintiff’s
employment brought him into the same space that armed policemen work
in did not make the possibility of being shot by one of them
a risk
that was incidental to his employment any more than the fact that
judges work in courthouses, where armed policemen are
engaged in the
work of guarding prisoners or acting as court orderlies, makes the
risk of being shot by one of those policemen
an incidental risk in
the relevant sense of holding judicial office. Such risk as
attaches to the judges in the given example
attaches by reason of
their presence in the courthouse and therefore arguably
in the
course of
their employment. It does not, however, arise out
of the nature of their work as judges, and therefore does not
arise
out of
their employment.
[34]
The defendant’s argument in this matter ignored the dichotomous
character of an ‘accident’ as defined in COIDA. It
conflated them by suggesting, in essence, that because the
injury was
sustained
in the course of
the plaintiff’s employment by
reason that the incident happened at a police station where he
worked, it also
arose out of
his employment. The
argument ignores that the determination of the risks incidental to
any employment - an enquiry bearing
on the latter criterion - relates
not to whether the accident happened while the employee was working,
but to the nature of the
work that the employee was engaged to do.
The two-tier test for the application of ‘the exclusivity
doctrine’
was satisfied in
Khoza
’s case. It
was not satisfied in the current case.
[35]
The special plea is therefore dismissed with costs.
A.G.
BINNS-WARD
Judge
of the High Court
[1]
See
the definitions of ‘employee’ and ‘employer’
in s 1 of COIDA.
[2]
See e.g.
Denel
(Edms) Bpk v Vorster
[2004] ZASCA 4
(5 March
2004), 2004 (4) SA 481
(SCA),
[2005] 4
BLLR 313
, at para. 3;
Absa
Bank Ltd v Bernert
[2010] ZASCA 36
(29 March
2010), 2011 (3) SA 74
(SCA), at para.
21;
Adlem
and another v Arlow
[2012] ZASCA 164
;
[2013] 1 All SA 1
(SCA),
2013 (3) SA 1
, at
para. 5;
Road
Accident Fund v Mohohlo
[2017] ZASCA 155
(24 November
2017), 2018 (2) SA 65
(SCA), at paras.
2-3;
First
National Bank v Clear Creek Trading 12 (Pty) Ltd and Another
[2015] ZASCA 6
(9 March 2015); 2018 (5) SA 300 (SCA) at paras.
8-14 and
Government
of the Western Cape: Department of Social Development v C B and
Others
[2018] ZASCA 166
(30 November
2018); 2019 (3) SA 235
(SCA),
at paras. 19-25.
[3]
Minister
of Justice v Khoza
1966 (1) SA 410
(A) at 417D, Rumpff JA expressed the necessary
character of an occupational injury as being one sustained ‘
in
verband met sy werksaamhede
’.
That was the construction the learned judge placed on the phrase
‘
uit
sy diens
’
in the (signed) Afrikaans text definition of ‘
ongeval
’,
which corresponds to ‘
arising
out of
’
in the English text definition of accident.
[4]
See in particular para 30.
[5]
In para 17.
[6]
MEC for Health supra, in para 8.
[7]
The passage is quoted in para 16 of
MEC
for Health
supra.
[8]
In para 16.
[9]
Id, para 31.