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[2016] ZASCA 201
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Minister of Safety & Security v Booysen (35/2016) [2016] ZASCA 201 (9 December 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
no: 35/2016
In
the matter between:
MINISTER
OF SAFETY AND SECURITY
APPELLANT
and
ELSA
BOOYSEN
RESPONDENT
Neutral
citation:
Minister
of Safety & Security
v
Booysen
(35/2016)
[2016] ZASCA 201
(9 December 2016)
Bench:
Bosielo,
Leach, and Wallis JJA and Schoeman and Makgoka AJJA
Heard:
10
November 2016
Delivered:
9
December 2016
Summary:
Vicarious liability – on duty police reservist
shooting partner
with service pistol – whether a sufficient link between the
wrongful conduct of the police officer and the
business of South
African Police Service.
ORDER
On
appeal from
:
Eastern
Cape Division, Grahamstown of the High Court (Plasket J sitting as
court of first instance):
1.
The appeal is upheld with costs, including the costs of two counsel.
2.
The order of the court a quo is set aside and replaced with the
following:
‘
The
plaintiff’s claim is dismissed with costs.’
JUDGMENT
Makgoka
AJA (Leach JA, Wallis JA and Schoeman AJA concurring):
[1]
The issue for determination in
this appeal is whether the appellant (the Minister) was vicariously
liable for the damages suffered
by the respondent (Ms Booysen) as a
result of her being shot by a police reservist. The appeal, with
leave of this court, is against
the judgment of the high court,
Eastern Cape Division, Grahamstown. Plasket J, found the Minister
vicariously liable for the conduct
of Mr Johannes Mongo, a police
reservist who shot and wounded Ms Booysen on 22 March 2013 and
promptly committed suicide by shooting
himself. I shall refer to him
as ‘the deceased'.
[2]
At the trial of the matter, the
issues of liability and quantum were separated in terms of Rule 33(4)
of the Uniform Rules of Court.
Certain factual issues were agreed
upon by the parties and recorded in a pre-trial minute. The only
issue for determination was
whether the Minister was vicariously
liable for the damages suffered by Ms Booysen as a result of the
deceased’s conduct.
Only Ms Booysen testified during the trial.
[3]
The facts are simple. Ms
Booysen and the deceased were involved in an intimate relationship
for at least six months. They both lived
in Pearston, Eastern Cape.
The deceased was a police reservist in the employ of the South
African Police Service (the SAPS). He
worked night shifts and was
assigned the duties of crime prevention and attending to complaints
by members of the public. On the
day of the incident, he visited the
home of Ms Booysen to have supper, as he usually did when he was on
duty. He was dropped off
by a marked police vehicle, while dressed in
full police uniform, and he was carrying a service pistol, which had
been issued to
him for the night shift. He was obliged to return the
pistol to the shift commander at the completion of his shift. The
arrangement
was that after supper, the police vehicle would return
and collect him and he would continue with his duties.
[4]
Although he commenced his
duties at approximately 19h40pm that evening, the deceased was not
carrying out any official duties of
the SAPS when he visited Ms
Booysen’s home. Upon his arrival at her home, he offered to buy
everyone soft drinks and went
out and purchased them from a nearby
shop. After he had supper, he and Ms Booysen sat outside. Suddenly,
and without any warning,
the deceased drew his service pistol and
shot Ms Booysen in the face and promptly committed suicide by
shooting himself too. Other
than a remark immediately before the
shooting that, if ‘he could not have her, no-one else would’,
there is no clue
to the deceased’s reasons for acting as he
did. Ms Booysen’s evidence was that their relationship was
untroubled.
[5]
It is on these facts that the
court a quo found the Minister vicariously liable to compensate Ms
Booysen for her injuries. It is
this finding with which the Minister
is aggrieved. This is a classic ‘deviation’ case, where
an employee deviates from
the ordinary tasks of his or her
employment. The test for vicarious liability in such cases finds its
jurisprudential foundation
in two leading cases of this court:
Feldman (Pty) Ltd v Mall
1945 AD 733
and
Minister of
Police v Rabie
1986 (1) SA
117
(A). As will be discussed later, this test has been refined by
the Constitutional Court to take account of the impact of the Bill
of
Rights and to ensure that it is applied in line with the spirit,
purport and objects of the Bill of Rights.
[6]
In
Feldman
this court had to consider a dependant’s claim for damages.
There, an employee had, after delivering the parcels he had been
instructed to deliver, driven his employer’s vehicle to attend
to his own personal matters. He consumed alcohol, which rendered
him
unable to drive the vehicle safely. On his way back to his
employer’s garage, he negligently collided with another
vehicle
and killed a father of two minor children. This court, by a
majority, held the employer to be vicariously liable.
Watermeyer CJ
at 742 held that if an employee’s acts while doing his
employer’s work or activities incidental to or
connected with
it, are carried out in a negligent or improper manner so as to cause
harm to third parties, the employer is liable.
On the facts of that
case, the majority found that the employee had never entirely
abandoned his employer’s work as he had
throughout retained the
custody and control of the vehicle on behalf of his employer. Hence
it held the employer vicariously liable.
[7]
Rabie
concerned
a claim for damages arising from the wrongful arrest, detention and
assault of the plaintiff. The police officer
who had made the
arrest was employed as a mechanic in the South African Police Force
and at relevant time off duty and in plain
clothes. In making
the arrest he had acted in pursuance of his own interests. He
had however identified himself as
a policeman to the plaintiff; taken
the plaintiff to the police station; filled out a docket; and
wrongfully charged the plaintiff
with attempted housebreaking. The
question was whether his employer, the Minister of Police, was
vicariously liable for the
damages suffered by the plaintiff.
Writing for the majority of this court, Jansen JA held the Minister
liable. At 134C-E
he formulated the following test for
determining vicarious liability in such cases:
‘
It
seems clear that an act done by a servant solely for his own
interests and purposes, although occasioned by his employment, may
fall outside the course or scope of his employment, and that in
deciding whether an act by the servant does so fall, some reference
is to be made to the servant’s intention (cf
Estate
Van der Byl v Swanepoel
1927 AD 141
at 150). The test is in this regard subjective.
On the other hand, if there is nevertheless a sufficiently close link
between the servant’s acts for his own interests and purposes
and the business of his master, the master may yet be liable.
This is an objective test.’
[8]
In a seminal judgment, the
Constitutional Court in
K v
Minister of Safety and Security
[2005] ZACC 8
;
2005 (6) SA 419
(CC) adapted the test laid down in
Rabie
to give effect to
constitutional norms and ethos. After a detailed and careful analysis
of our earlier jurisprudence, including
Feldman
and
Rabie
,
and foreign law, O’Regan J (para 32) stated the adapted test as
follows:
‘
The
approach makes it clear that there are two questions to be asked.
The first is whether the wrongful acts were done solely
for the
purposes of the employee. This question requires a subjective
consideration of the employee’s state of mind
and is a purely
factual question. Even if it is answered in the affirmative,
however, the employer may nevertheless be liable
vicariously if the
second question, an objective one, is answered affirmatively.
That question is whether, even though the
acts done have been done
solely for the purpose of the employee, there is nevertheless a
sufficiently close link between the employee’s
acts for his own
interests and the purposes and the business of the employer.
This question does not raise purely factual
questions, but mixed
questions of fact and law. The questions of law it raises
relate to what is “sufficiently close”
to give rise to
vicarious liability. It is in answering this question that a
court should consider the need to give effect
to the spirit, purport
and objects of the Bill of Rights.’ (Footnote omitted.)
[9]
O’ Regan J continued to
explain (para 44) that the objective element of the test which
relates to the connection between the
deviant conduct of the
wrongdoer and their employment, approached with the spirit, purport
and objects of the Bill of Rights as
intended in s 39 (2) of the
Constitution, is sufficiently flexible to incorporate not only
constitutional norms, but other norms
as well. It requires a
court to articulate its reasoning for its conclusions as to whether
there is a sufficient connection
between the wrongful conduct and the
employment. Thus developed, by the explicit recognition of the
normative content of the objective
stage of the test, its application
should not offend the Bill of Rights or be at odds with our
constitutional order.
[10]
The Constitutional Court in
K
thus developed the common law of vicarious liability in two critical
respects: firstly, it laid bare the policy-laden or normative
character of vicarious liability and required that the normative
considerations at play be expressly articulated by the courts.
Secondly, it endorsed a new test for the imposition of vicarious
liability in the deviation cases which embraces such normative
considerations.
[1]
[11]
The facts in the case of
K
were as follows: a 20
year-old woman was stranded at a petrol station in the early hours of
the morning, when three on-duty police
officers offered to give her a
lift home, in fulfillment of their duties as police officers. En
route, she was brutally raped by
all three police officers and
abandoned by the side of the road. Ms K had trusted them in their
capacity as police officers, in
circumstances where it was reasonable
for her to do so. The Constitutional Court, on these facts, concluded
that the police officers’
conduct bore a sufficient connection
to their employment as police officers to attach vicarious liability
to the Minister. The
Court based its conclusion on three
considerations (paras 51 – 53):
‘
(a)
The police officers and their employer all carried a statutory and
constitutional duty to
prevent crime and protect the members of the
public;
(b)
The police officers had offered to assist Ms K and she had accepted
their offer and
by doing so, displayed her trust in the police
officers in uniform in circumstances where it was reasonable for her
to do so; and
(c)
There had been a simultaneous commission and omission: the police had
committed the
rape; and their simultaneous omission was that they
failed while on duty to protect her from harm, which they had a
general and
special duty to do.’
[12]
The Constitutional Court had
occasion to consider the issue again in
F
v Minister of Safety and Security & others
[2011] ZACC 37
;
2012 (1) SA 536
(CC), where the facts were
disturbingly similar to those in
K
.
A 13-year old girl (Ms F) was given a lift by an off-duty SAPS
member in the early hours of the morning after she had visited
a
nightclub. The police officer was in civilian clothes and had also
been at the night club, although he was on standby. This meant
that
he could, at any time of the night, have been called upon to attend
to any crime-related incident if the need arose. He had
been given
possession of an unmarked police vehicle to enable him to discharge
any police functions that he might have been required
to perform
whilst on standby duty. That was the vehicle in which Ms F was
driven. Whilst inside the vehicle, she noticed
a pile of police
dockets bearing the police officer’s name and rank. On her
questioning the presence of police dockets in
the vehicle, he replied
that he was a private detective, which she understood to mean that he
was a police officer. Ultimately,
instead of taking Ms F home, the
police officer took her to a secluded spot and raped her. The
majority of the Constitutional Court
held the Minister vicariously
liable for the police officer’s conduct.
[13]
Mogoeng J, writing for the
majority of the court, set out (para 52) the normative components
that pointed to liability in that case
as being the following: the
state’s constitutional obligations to protect the public; the
trust that the public is entitled
to place in the police; the
significance, if any, of the policeman having been off duty and on
standby duty; the role of the simultaneous
act of the policeman’s
commission of the rape and omission to protect the victim; and the
existence or otherwise of an intimate
link between the policeman’s
conduct and his employment. Mogoeng J noted that these elements
complemented one another in
determining the state’s vicarious
liability in the matter.
[14]
Applying the
K
test to the present case, the answer to the first question, which is
subjective, does not establish liability. The deceased’s
visit to Ms Booysen’s home was solely for his own purposes. He
was on a private visit to his lover’s home to have supper.
He
was not there in his capacity as a police officer. Simply put, he had
no official police function to perform. The visit was
purely social
during the time when he was permitted to be away from the police
station for a meal break. It had nothing to do with
his employer, any
more than it would have had anything to do with his employer’s
business if he had been sitting having a
meal in a café, or
purchasing a take-away at a fast food restaurant.
[15]
I now consider whether the
requirements of the second leg of the test, which is objective, have
been established. This is to determine
whether there is a
sufficiently close link between the shooting incident and the
business of the SAPS. I accept that the deceased
was on duty at the
time he visited Ms Booysen’s home, although he was not carrying
out any official duties of the SAPS. However,
as stated earlier, he
was on a meal break during which time he was entitled to be away from
the station and to go about his own
business. He was in full police
uniform, and in possession of a service pistol. He had been dropped
at Ms Booysen’s home
by a police vehicle, which, but for the
incident, would have picked him up later for him to continue with his
duties. These are
the factors that influenced the court a quo to come
to the conclusion that a sufficient link had been established between
the deceased’s
wrongdoing and his employment with the SAPS.
[16]
The court a quo relied on
Pehlani v Minister of Police
(9105/2011) [2014] ZAWCHA 146; (2014) 35 ILJ 3316 (WCC) (25 September
2014), which bears some similarity to the present case. A
police
reservist had volunteered for duty. After being provided with a
service pistol, she had gone out and found her former boyfriend
(the
plaintiff), whom she had previously assaulted and threatened. She
shot and injured him with her service pistol, while dressed
in full
police uniform, but had abandoned her duties. Shortly before the
shooting, she had sent threatening emails to the plaintiff,
stating
that if he did not return to her, she would book out a firearm and
kill him. There was no evidence that the management
of the SAPS were
aware of the threats that she had made against the plaintiff. On
these facts, the court a quo found the Minister
to be vicariously
liable. The court found very significantly, the fact that the police
officer used a service firearm to commit
the delict. It
reasoned as follows (which reasoning the court a quo endorsed):
‘
[32]
The fact that Petshwa used a SAPS firearm to shoot the plaintiff is,
in my view, a particularly weighty
factor in the conclusion that
there was a sufficiently close connection between her wrongful
conduct and SAPS business. In
K
and
F
the wrongdoers used police vehicles to facilitate their crimes. The
vehicles were, however, only an indirect aid to the perpetration
of
the rapes, hence the significance of other factors. Here, by
contrast, the firearm was the very means by which the crime was
committed. Of all the accoutrements of police office, the firearm is
the most obviously and immediately dangerous. The normative
values
underlying the imposition of vicarious liability would be served by
acknowledging the risk created for members of the public
when police
officials are placed in possession of dangerous weapons and by
encouraging strict official control over the issuing
of firearms to
police officials.’
[17]
I respectfully disagree with
the reasoning in this passage. What it amounts to is this: by issuing
a firearm to a police officer,
the Minister is liable for any delict
committed by a police officer using that firearm. The finding of
liability based on the mere
fact of the SAPS issuing a firearm to a
police officer, amounts to the imposition of strict liability, which
is impermissible.
For liability to arise under such circumstances,
there must be evidence that the police officer in question was, for
one reason
or the other, known to be likely to endanger other
people’s lives by being placed in possession of a firearm, and
despite
this, he or she was nevertheless issued with the firearm or
permitted to continue possessing it. Such was the situation in
F
,
where the police officer was retained in the employ of the SAPS as a
detective despite previous criminal convictions. See also
the facts
in
Ramushi
v Minister of Safety and
Security
(6859/2002) [2012]
ZAGPPHC 175 (18 August 2012).
[2]
[18]
We are not concerned with such
a situation in this matter. There is no evidence that when the
deceased was employed and issued with
a firearm, the management of
the SAPS were aware or should have been aware that this created a
material risk of harm to the community.
On the contrary, it was
common cause between the parties that the shooting was not foreseen
by either Ms Booysen or the management
of the SAPS. As the court a
quo correctly observed, there appeared to have been no sign at all
that the deceased would have done
what he did. In her evidence, Ms
Booysen also testified that she and the deceased had no relationship
problems, nor had they argued
about anything. Therefore, to the
extent that
Pehlani
imposed vicarious liability merely on
the basis that the SAPS had issued a firearm to a police officer who
committed a delict with
that firearm. In my view, it was wrongly
decided.
[19]
The question remains whether in
this case there is a sufficient link between the deceased’s
conduct and his employment to
impose vicarious liability on the
Minister. That question can only be answered by considering the
normative factors referred to
earlier, and the countervailing
factors, thus conducting a balancing act. To my mind, the
weighty countervailing factor is
that, when the deceased visited Ms
Booysen, and when the shooting incident took place, unlike the
situation in both
K
and
F
,
the two were not relating to one another as police officer and
citizen, but as lovers in a domestic setting. From the facts it
is
clear that Ms Booysen did not repose trust in the deceased due to his
employment as a police reservist with the SAPS. She did
not fall in
love with the deceased because he was a policeman. She confirmed this
much in her evidence. She testified that she
and the deceased grew up
together in the same community.
[20]
Thus, the issue of trust that
the public ordinarily reposes in the police, did not arise in this
matter at all, unlike in
K
and
F.
The
court a quo recognised this, but nevertheless reasoned that the
element of trust is not a prerequisite for vicarious liability.
It is
merely one factor that may or may not be present. While I agree that
this is only one of the normative factors to be considered,
I do not
share the court a quo’s relegation of that aspect to one that
can be dispensed with. A careful and close reading
of
K
and
F
reveals that the element of trust was central to the finding that
there was a sufficiently close link connection between the acts
of
the police officers and their employment, hence, vicarious liability.
It is indeed doubtful whether, without the
element of trust, the
outcome of the two cases would have been the same.
K
is explicit on this aspect:
‘
[57]
In sum, the opportunity to commit the crime would not have arisen but
for the trust the applicant placed
in them because they were
policemen, a trust which harmonises with the constitutional mandate
of the police and the need to ensure
that mandate is successfully
fulfilled.’
[21]
F
is also emphatic on the centrality of the element of trust. Mogoeng
J firmly explained:
‘
[66]
Whenever a vulnerable woman or girl-child places her trust in a
policeman on standby duty, and that
policeman abuses that trust by
raping her, he would be personally liable for the damages arising
from the rape. Additionally, if
his employment as a policeman secured
the trust the vulnerable person placed in him, and if his employment
facilitated the abuse
of that trust, the State might be held
vicariously liable for the delict. The victim’s understanding
of the situation would
presumably be that she is being protected or
assisted by a law enforcement agent, empowered and obliged by the law
to do so. Whether
he is on or off duty would, in all likelihood, be
immaterial to her. From where she stands, he is a policeman, employed
to protect
her, and should therefore be trusted to uphold, and not to
contravene, the law.’
[22]
In this court, counsel for Ms
Booysen accepted that the single most significant argument in favour
of imputing vicarious liability
to the Minister is the fact that the
SAPS had issued a firearm to the deceased. That he was in police
uniform, having been dropped
at her home by a police vehicle, and
that he would, but for the incident, have been picked up by a police
vehicle, are all important
normative considerations. But, in the
context of this case, their significance is weakened by the absence
of the element of trust,
which, as explained above, was so pervasive
in
K
and
F
.
They do not, in my view, alter the simple position that this was an
unfortunate domestic occurrence, and the use of a service
firearm by
the deceased was more incidental than anything.
[23]
Would it, for instance, have
made any difference had the deceased arrived at Ms Booysen’s
home in his private vehicle, wearing
civilian clothes, and in
possession of a service firearm? Put differently, in the context of
the intimate relationship between
Ms Booysen and the deceased, is
there any significance in these considerations, and if so, to what
extent? I do not think
there is much. The deceased was not
there to carry out any official duties as a police officer. There was
no situation which called
upon him to act as a police officer at Ms
Booysen’s house. He was there in a domestic setting to enjoy
dinner with his lover.
The members of the community who saw him enter
Ms Booysen’s home, and who knew him as her boyfriend, would not
have viewed
the unfortunate incident as a police officer shooting a
member of the public, but a lover, who happened to be a police
reservist,
shooting his partner. This is also how the public would
have viewed the situation in
Pehlani.
[24]
This is unlike in
K
and
F
,
where the wrongdoing of the police officers was viewed pre-eminently
in their capacity as police officers, for the simple reason
that the
victims of their delictual conduct were in desperate need of police
protection, and reposed trust in them as police officers.
The police
officers, instead, abused their positions as police officers by
raping the victims. There is a further distinguishing
feature between
this case and those of
K
and
F
,
namely that this is an unfortunate domestic incident in which the
gender roles could easily be reversed, as was the situation
in
Pehlani
.
[25]
In saying this, I am not for a
moment suggesting that the deceased would have been entitled to play
possum and fail to act because
he was on a supper break. Had a
situation arisen, such as a robbery or house-breaking, whilst he was
at Ms Booysen’s home,
that would have required him to act as a
police officer and if he failed to act under those circumstances, the
Minister would be
held vicariously liable on the basis of an act or
omission on the part of the deceased. This has been our law since
Minister van Polisie
v
Ewels
1975
(3) SA 590
(A).
[26]
In this court, counsel for Ms
Booysen accepted a proposition that the factors relied on by the
court a quo to find the Minister
vicariously liable, have no
significance in the context of this case. But that only reinforces
the point that the real connection
is said to lie in the deceased’s
possession of the service pistol and nothing else. Counsel’s
submission finds resonance
in the erudite dissenting judgment of my
colleague, Bosielo JA, which I have had the benefit of reading.
[27]
My colleague and I are agreed
that there is always a risk that a police officer might use his
service firearm to cause harm to the
public. It is the reach and
extent of vicarious liability to be imputed to the Minister under
such circumstances, on which we differ.
On my colleague’s
approach, the Minister is liable without more. I take a different
view. To my mind, the Minister can only
be held vicariously liable if
there is evidence that the SAPS issued a firearm under circumstances
which called for additional
caution and circumspection, and which the
SAPS ignored. I have already alluded to examples of such factors in
paras 17 and 18 above,
which factors are by no means exhaustive, and
would depend on the facts of each case.
[28]
Therefore, the question in each
case should be whether, when issuing a firearm to a police officer,
there were factors known to
the management of the SAPS, which pointed
to a heightened risk that such officer might use the firearm for
wrongful conduct, such
as a violent or abusive history, alcohol
abuse, mental health issues, etc. In the absence of such factors, it
is difficult to imagine
how, other than on the basis of strict
liability, the Minister can be held vicariously liable for the
wrongful conduct of a police
officer in deviation cases. Neither
K
nor
F
serves as authority for that proposition. As Mogoeng J was at pains
to explain in
F
(para 45) some link must be established between the employer’s
business and the delictual conduct before the employer may
be held
vicariously liable. That link, in my view, is missing in this case.
[29]
The main reason for my
colleague imputing vicarious liability to the Minister is that the
SAPS creates a potential risk of harm
to the public by issuing police
officers with firearms, because ‘[b]y giving [the police]
dangerous weapons like firearms
to use, the Minister is creating
enormous potential that some police might use them for purposes other
than those for which they
are lawfully entitled to. It is the
responsibility of the Minister as the employer to ensure that his or
her employees are properly
trained and disciplined, and will not pose
danger to the public they are expected to protect.’ (para 43
below). My colleague
seeks support for this in
Minister
of Defence v Von Benecke
2013 (2) SA 361
(SCA) para 24. On principle, I embrace these
sentiments, but they do not apply on the facts of this case. There is
no evidence
that the SAPS failed in its responsibility to ensure that
the deceased was properly trained and disciplined, or that it should
have foreseen that the deceased would pose a danger to the public.
[30]
In
Von
Benecke
,
the Minister of Defence was held vicariously liable for the injuries
sustained by a member of the public when he was shot during
an armed
robbery. The robber used an assault rifle that he had assembled using
parts furnished by a member of the defence force
who was in charge of
the storage at a military base. The member had stolen the rifle parts
and ammunition and handed them to the
robber. The robber subsequently
used those parts and ammunition together with a previously stolen
rifle body, to assemble the weapon
used in the robbery. Holding
the minister of defence vicariously liable for the injuries sustained
by a member of the public,
this court noted, in the statutory context
of the structure and regulation of the defence force, that the
defence force was a special
kind of employer with a relationship
towards its employees and the public. It therefore required an
approach to liability for the
wrongful acts of those employees which
is very different from that of an ordinary civilian employer.
Heher JA, further observed
that the defence force’s proper
functioning required it to possess quantities of dangerous weapons
which cannot be permitted
to escape into the hands of the public and
especially the criminal element of the population.
[31]
It is therefore clear that this
court, in
Von Benecke
,
was concerned with a different context than this case. The storage
and preservation of arms and ammunition is eminently a ground
for
potential harm to the public, especially if they fall into the wrong
hands. Heher JA summed up the basis for imputing liability
to the
minister of defence as follows:
‘
[24]
[The Department of Defence] has the duty to educate its employees in
the disciplines required to minimise
that risk. It goes without
saying that because of the enormous potential for public harm
inherent in the inadequate preservation
and control of arms, the
department (through its responsible minister) should not in general
be able to avoid liability for wrongful
acts of commission or
omission of employees that it had appointed to preserve and control
its arms, save in cases where the court
finds that those acts are not
sufficiently closely connected with the employee’s duties to
warrant the imposition of liability
on the department.’
[32]
My colleague’s approach
would have far-reaching consequences for the Minister. So too, would
other sectors be affected: the
defence force, the security industry,
and all sectors where the job description requires employers to issue
firearms to their employees.
Take the example of a police officer who
wrongfully shoots his/her spouse or partner with a service firearm
during an argument,
in their private residence. On my colleague’s
approach, vicarious liability on the part of the Minister would be
attracted
automatically and without more, because a firearm was
issued to such employee.
But,
if instead of using their service firearm the police officer had used
their privately owned and licensed firearm, the Minister
would not be
liable. That is not our law.
[33]
The liability of employers for
the wrongs committed by their employees has always been vicarious,
not direct or strict. As observed
in
K
(para 21) one of the principles underlying vicarious liability is the
desirability of affording employers an opportunity to take
active
steps to prevent their employees from causing harm to members of the
broader community. There is a countervailing principle
too: this is
that damages should not be borne by employers in all circumstances,
but only in those circumstances in which it is
fair to require them
to do so.
[34]
On the above considerations, I
take a view that the normative factors relied on by the court a quo
do not establish a strong and
significant connection between the
conduct of the deceased and his employment by the SAPS. Even the
closest one, namely the issuing
of the firearm to the deceased by the
SAPS, falls short. It does not suffice for vicarious liability to be
imputed to the Minister
in the circumstances of this case. The appeal
should therefore succeed.
[35]
The following order is made:
1.
The appeal is upheld with costs, including the costs of two counsel.
2.
The order of the court a quo is set aside and replaced with the
following:
‘
The
plaintiff’s claim is dismissed with costs.’
___________________
T
M Makgoka
Acting
Judge of Appeal
Bosielo
JA (dissenting)
[36]
I have had the pleasure of reading a succinct, lucid and meticulously
written judgment by my colleague, Makgoka AJA. I am furthermore
grateful to him for having set out the salient facts so
comprehensively that there is no need for me to rehash them.
Regrettably,
I do not agree with his reasoning and conclusion.
Hereunder are my reasons for my dissent.
[37]
I pause to observe that the problem of vicarious liability of an
employer for the wrongful actions of his/her employee’s
deeds
is not novel. It has engaged our courts for many years. As the
Canadian Supreme Court held in
Bazley v Curry
,
[1999] 2 SCR
534
,
1999 CanLII 692
(SCC) paras 11 and 12:
‘
The
problem is that it is often difficult to distinguish between an
unauthorized “mode” of performing an authorized
act that
attracts liability, and an entirely independent “act”
that does not. Unfortunately, the test provides no criterion
on which
to make this distinction. In many cases, like the present one, it is
possible to characterize the tortious act either
as a mode of doing
an authorized act (as the respondent would have us do), or as an
independent act altogether (as the appellants
would suggest). In such
cases, how is the judge to decide between the two alternatives?
One
answer is to look at decided cases on similar facts. As Salmond and
Heuston,
supra
, put it, “the principle is easy to state
but difficult to apply. All that can be done is to provide
illustrations on either
side of the line” (p. 522). The problem
is that only very close cases may be useful. Fleming observes that
“[n]o statistical
measurement is possible [of when such torts
are properly said to be within the “scope of employment”],
and precedents
are helpful only when they present a suggestive
uniformity on parallel facts” (J. G. Fleming,
The Law of
Torts
(9
th
ed. 1998), at p 421).’
This
is such a case.
[38]
As my colleague correctly pointed out in the main judgment, the crisp
legal question to be answered in this appeal is whether,
on the facts
of this case, the Minister was correctly found by the court
a
quo
to be vicariously liable to Ms Booysen for the damages caused to her
when she was unlawfully shot by Mr Johannes Mongo, her deceased
boyfriend (hereinafter referred to as the deceased), who was a police
reservist in the Minister’s employment at the time.
[39]
In upholding the appeal, my colleague reasoned as follows at para 14:
‘
The
deceased’s visit to Ms Booysen’s home was solely for his
own purposes. He was on a private visit to his lover’s
home to
have supper. He was not there in his capacity as a police officer.
Simply put, he had no official police function to perform.
The visit
was purely social during the time when he was permitted to be away
from the police station for a meal break. It had nothing
to do with
his employer, any more than would have had anything with his
employer’s business if he had been sitting having
a meal in a
café or purchasing a take-away at a fast food restaurant.’
[40]
Based on this, my colleague found that when the deceased shot Ms
Booysen, he was not carrying out any official duties for the
SAPS as
he had gone to Ms Booysen’s place as her boyfriend to have
supper as it was his routine when doing night duty. In
other words,
he was on a frolic of his own. As a result, Ms Booysen and her family
accepted him not as a police officer, but as
her boyfriend. He sought
to distinguish this case from
K
v Minister of Safety and Security & others
(supra)
and
F
v Minister of Safety and Security & others
(supra) on the basis that Ms Booysen did not treat the deceased as a
police officer but as her boyfriend at the time. Hence she
did not
repose her trust in him as a police officer.
[41]
It is true as my colleague observed that the trust which the
complainants in
K
and
F
had
reposed in the police officers involved played a prominent if not
pivotal role in the court’s finding that the Minister
was
vicariously liable for the delicts committed by her employees. My
colleague found that as the deceased went there in his private
capacity to have supper, the element of trust does not arise, hence
the basis for vicarious liability is absent. I do not agree.
[42]
It is true as both
K
and
F
found
that the public trust in the police service is essential for a
credible and efficient police service. It is further true that,
given
the important role played by police officers in combating and
preventing crime in our society, they enjoy a special place
in the
psyche of members of the public. As a result, the sight of a police
officer clad in full police uniform, armed with a state-issued
firearm and using a visibly marked police vehicle, would without
fail, instinctively evoke a feeling of comfort and trust in most,
if
not all members of society. To members of society it matters not
whether the police officer is on or off duty, or in a private
dwelling or at public facilities like a restaurant, bank, a shopping
mall or a shebeen. Members of society have all the good reasons
to
see such a police officer as a police officer who should be ready to
act as a police officer at all times in line with the state’s
constitutional obligations to prevent and combat crime and,
importantly to protect the public. This trust is not necessarily
confined
to the police officer concerned, but extend to the entire
police service.
[43]
It is furthermore important to bear in mind that police officers are
not ordinary members of the public. They are people appointed
as
police officers after a careful process of selection followed by
appropriate and intensive training in professionalism, discipline,
self-control and skills, amongst others, in the use of firearms.
These policemen and women are there to protect the public. Their
relationship with the public is special and unique. In order to be
able to execute their duties, they require amongst others, firearms.
By giving them dangerous weapons like firearms to use, the Minister
is creating enormous potential that some police officers might
use
them for purposes other than those for which they are lawfully
entitled to. It is therefore the responsibility of the Minister
as
the employer to ensure that his or her employees are properly trained
and disciplined, and will not pose a danger to the public
which they
are expected to protect. Our people also expect this from a
professional and disciplined police service. Should the
police fail
to execute their duties, it follows that the Minister should bear
responsibility for them as employees. See
Von
Benecke
(supra) at para 30.
[44]
In explaining the liability of an employer where his employee has
intentionally deviated from his or her duties, Watermeyer
CJ
enunciated the principle as follows in
Feldman
(supra) at 741:
‘
I
have gone into this question more fully than seems necessary, in the
hope that the reasons which have been advanced for the imposition
of
vicarious liability upon a master may give some indication of the
limits of master’s legal responsibility, and the reasons
are to
some extent helpful. It appears from them that a master who does his
work by the hand of a servant creates a risk of harm
to others if the
servant should prove to be negligent or inefficient or untrustworthy;
that, because he has created this risk for
his own ends he is under a
duty to ensure that no one is injured by the servant’s improper
conduct or negligence in carrying
on his work and that the mere
giving by him of directions or orders to his servant is not a
sufficient performance of that duty.
It follows that if the servant’s
acts in doing his master’s work or his activities incidental to
or connected with
it are carried out in a negligent or improper
manner so as to cause harm to a third party the master is responsible
for that harm’.
[45]
As Mogoeng J elaborated further on this approach in
F
para 45:
‘
Central
to this passage is the proposition that employees are extensions of
their employers. This is indeed so because, figuratively,
employees
are the hands through which employers do their work. Employers could
therefore be held to have created a risk of harm
to others should
their employees prove to be inefficient or untrustworthy. That
potential risk imposes an obligation on employers
to ensure that the
employees they hold as the hands through which they would serve or do
business with others, would not do the
opposite of what they are
instructed and obliged to do’.
[46]
However, Mogoeng J cautioned, correctly so, that ‘should they,
however, act inconsistently with the employers’
core business,
some link between the employers’ business and the delictual
conduct must be established before the employer
may be held
vicariously liable.’ It is this link or nexus that is at issue
in this appeal.
[47]
It is common cause that all elements of the delict have been
admitted. The remaining issue is that of the Minister’s
vicarious liability for the conduct of the deceased who shot Ms
Booysen. No doubt this is a difficult question involving both a
factual and legal enquiry. It is trite that in order to answer this
question, a critical analysis and careful evaluation of facts
is
inevitable. The test must not be applied mechanically as it involves
some policy considerations. This requires trial judges
to investigate
amongst others, the employees’ duties, the supervision, if any
exercised over him/her and to determine whether
the nature of his/her
duties created opportunities for wrongdoing. Importantly, this must
be done through the prism of our Constitution
and its values and
norms.
[48]
The following essential facts are not only common cause but are
relevant to answering this vexed question: that the deceased
was on
duty on this fateful day for the whole night; that he was dressed in
full SAPS uniform; that he was issued by the SAPS with
a 9mm
Parabellum semi-automatic pistol; that he had been assigned crime
prevention duties; that he was required to attend complaints
by
members of the public; that he was driven to Ms Booysen’s
residence by a colleague in a police vehicle and that, the same
colleague would have fetched him from Ms Booysen’s residence so
that he could continue with his official duties as a police
officer,
had he not committed suicide.
[49]
As alluded to above, the kernel of the main judgment is that, at the
time of the shooting, the deceased was not acting as a
police officer
because he had gone to Ms Booysen’s residence as her boyfriend
to have supper. The conclusion is that having
supper at his
girlfriend’s place in no way linked the deceased to his
employment with the appellant. I do not agree. This
is because it
cannot be disputed that, for all intents and purposes, the deceased
assumed his official duties as a police officer
from the moment his
shift started until the time when he would have knocked off
officially the following day. Does the fact that
at some stage during
the night when he was still on duty, he had entered Ms Booysen’s
home to have supper, mean that he had
ceased being a police officer?
Assuming some intruders had broken into Ms Booysen’s home
whilst he was still there, would
it have made any difference to his
official responsibilities as a police officer that he was there to
enjoy his supper? Would it
make sense for him to say that he could
not act as he was on a break? Certainly not. Naturally, he would have
been expected to
act as a police officer, use his powers to prevent,
combat and arrest the intruders in line with his constitutional
obligations.
His failure to act to prevent an offence about to happen
would expose the Minister, his employer to a possible law suit.
Dressed
as he was in full uniform, armed with an official firearm and
being driven in an official police vehicle, he epitomized a police
officer who was on duty in terms of his employment with the Minister
to any reasonable person. How else would any person perceive
him? Any
reasonable person would not see him as anything other than a police
officer.
[50]
In
F
,
para 52 Mogoeng J spoke of the normative components in the evidence
which point to the existence of vicarious liability. In my
view,
these factors must be seen not in isolation but holistically to
determine if they complement one another to an extent that
they
justify a finding of vicarious liability. None of them can be
decisive of this intractable question on its own. Chief amongst
these
is the general duty of the police to protect the public from any
violations of their constitutional rights. It is trite that
women and
children are the most vulnerable members of society. They are
defenceless victims of the scourge of family violence which
is so
ubiquitous in our society. The police are catapulted to the forefront
of this fight to protect women and children against
abuse and
violence. They are the avant-garde agency against crime as
encapsulated in s 205(3) of the Constitution. They cannot
be allowed
in any civilized society, particularly the one underpinned by the
Bill of Rights, to do the opposite as it happened
in this case.
[51]
Undoubtedly, this is a classic case of a police officer, clad in full
police uniform and on duty, who unlawfully used a state
issued
firearm, not to protect the public as he was constitutionally obliged
to, but instead abused his constitutional powers and
shot Ms Booysen.
In short, he deviated from his lawful duties with the Minister, a
so-called deviation case. Does the fact that
the deceased shot his
girlfriend at her home whilst he had gone there to have supper make
any difference? Simply put, does the
fact that the deceased was on a
break to eat his supper, sever his links as a police officer with the
Minister to a point where
it destroys any basis of a possible
vicarious liability on the part of the Minister? I think not. This is
simply because Ms Booysen
like all other citizens is entitled to
protection by members of the police service against any violation of
her constitutional
rights. It is worse that it is the same police
officer who, instead of protecting her, violated her constitutional
rights. To absolve
the Minister from liability in the peculiar
circumstances of this case would be subversive of the constitutional
duty on the part
of the police service to protect the public. It is
clear to me that by allowing the deceased to go about in full police
uniform,
with a police vehicle, armed with a police firearm and
without any supervision, created a serious risk that he may
misbehave. This
case differs from
Minister
of Safety and Security v Morudu & others
[2015]
ZASCA 91
,
2016 (1) SACR 68
(SCA) where the police officer involved
was using an unmarked car. He belonged to a unit from which the
public would ordinarily
not expect protection, as he was a
fingerprint expert. His primary duty was merely to investigate crime
scenes for fingerprints.
[52]
To my mind, the various normative facts set out above constitute a
sufficiently close or intimate connection between the unlawful
shooting of Ms Booysen by the deceased and his employment with the
Minister, being to combat and prevent crime, and not to violate
people’s constitutional rights. This finding, in the peculiar
circumstances of this matter, is in line with the spirit, purport
and
objects of the Bill of Rights, in particular the state’s
obligation through the police service to protect and promote
Ms
Booysen’s right to dignity and her bodily and psychological
integrity. Furthermore, this is compatible with the constitutional
mandate of the SAPS as set out in s 205(3) of the Constitution.
[53]
For these reasons, I would dismiss the appeal with costs, including
the costs of two counsel, where employed.
___________________
L
O Bosielo
Judge
of Appeal
APPEARANCES:
For
the Appellant:
E A S Ford
SC
J J
Bester
Instructed
by:
Whitesides,
Grahamstown
State
Attorney, Bloemfontein
For
the Respondent:
D Niekerk
Instructed
by:
N N
Dullabh & Co, Grahamstown
Symington
& De Kok, Bloemfontein
[1]
H Barnes. Heidi.
‘
F
v Minister of Safety and Security
:
Vicarious liability and state accountability for the criminal acts
of police officers.’ SA Crime Quarterly [online]. Jan.Mar.
2
014,
n.47 at 29-34. Available from <http:www.scielo.org.za/scielo.
[2]
An
off-duty police officer shot a member of the public, using his
service pistol. It was common cause that between the period
he was
assigned the service pistol and the shooting incident, there were
four complaints against the police officer, all relating
to the
handling and use of a firearm. Among those, he had been internally
found guilty (for negligent handling of a firearm)
and criminally
convicted (for being
drunk
in a public place and pointing of a firearm) for which he was
sentenced to a fine or imprisonment period.
Despite
this information being known to the management of the SAPS, no steps
were taken to remove the firearm from the police
officer or
investigate his fitness to continue possessing a firearm. It was
held that the Minister was vicariously liable under
those
circumstances.