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[2015] ZASCA 91
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Minister of Safety and Security v Morudu (1084/2013) [2015] ZASCA 91; 2016 (1) SACR 68 (SCA) (29 May 2015)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
CASE
NO: 1084/2013
In
the matter between:
MINISTER
OF SAFETY AND
SECURITY
APPELLANT
and
MAPULA
PAULINE
MORUDU
FIRST
RESPONDENT
Neutral
Citation:
Minister of Safety and
Security v Morudu
(1084/2013)
[2015] ZASCA 91
(29 May 2015).
Coram:
Navsa ADP, Brand, Saldulker & Mbha JJA and Dambuza AJA
Heard:
12 May 2015
Delivered:
29 May 2015
Summary:
Vicarious liability – test to be applied in deviation cases
– spirit, purport and objects of the Bill of Rights to be
considered – acts of policeman not sufficiently close to give
rise to vicarious liability.
ORDER
On
appeal from
: The North Gauteng High Court, Pretoria (Molefe AJ
sitting as court of first instance).
The
following order is made:
1.
The appeal is upheld and no order is made as to costs.
2.
The order of the court below is set aside and substituted as follows:
'The
plaintiffs‟ claims are dismissed and no order is made as to
costs.'
JUDGMENT
Navsa
ADP (Brand, Saldulker & Mbha JJA and Dambuza AJA concurring):
[1]
The events of the morning of the day before Christmas 2001 will, no
doubt, continue to haunt the respondents, Mrs Mapula Pauline
Morudu
and her four children for the rest of their lives. On that fateful
day Inspector Frans Duba (Duba), then employed by the
appellant, the
Minister of Safety and Security, drove to their home situated at 22
Zone 5, Seshego Township in the Limpopo Province.
Upon arrival he
called out the name of Mr Mothibi Elias Morudu, the first
respondent‟s husband and the father of the other
respondents.
Duba asked about the whereabouts of Mrs Duba, his wife. Shortly
thereafter he pursued Mr Morudu, through the house
and ultimately
shot and killed him.
[2]
At
the
time
of
the
events
referred
to
in
the
preceding
paragraph,
Duba
was
attached
to
what
is
now
known
as
the
Polokwane
Criminal
Record
and
Crime
Scene Management
Unit
of
the
South
African
Police.
Simply
put,
he
was
a
fingerprint
investigator and
a member
of
a police unit that
attended crime
scenes
for investigative
purposes
when
called
upon
to
do
so.
Duba
drove
to
the
house
where
he
shot
Mr
Morudu
(the
deceased)
in
an
unmarked
police
vehicle
that
had
been
assigned
to
his
unit. At that time, he and
another colleague were on call to attend crime scenes, should
the
need
arise. The
firearm which
he
used in perpetrating the
awful
deed
was his own
and
not
of
official
issue.
The
question
on
appeal,
as
in
the
court
below,
is
whether,
following
on
the
death
of
the
deceased,
the
appellant
should
be
held
vicariously
liable
for the respondents‟
alleged loss of support sustained as a result of Duba‟s
actions. The
details
that follow
have been distilled from the evidence
adduced in the Gauteng
Division,
Pretoria,
[1]
following
on
an
action
instituted
by
the
respondents
in
which
they claimed damages
flowing from the unlawful killing of the deceased.
[3]
During the morning of Monday, 24 December 2001, shortly after she
awoke, the first respondent, in preparing to start her daily
household chores, took the youngest of her three children to the room
where her other children slept. She returned to her bedroom
when
suddenly, Duba appeared from behind the curtains, calling out her
husband‟s name and asking about the whereabouts of
his wife,
Mrs Duba. The first respondent was terrified. Duba, who was armed,
fired shots in her bedroom. The first respondent managed
to escape
from the room and whilst fleeing grabbed one of her children who was
standing in a passage of the house. The first respondent
exited
through the kitchen door and sought refuge in a neighbouring house.
From the neighbour‟s premises she saw a white
unmarked motor
vehicle, which Duba had used to travel to the scene. It was parked
around a corner close to her house. When she
returned to the house
she found the deceased lying close to the kitchen door. He had been
shot and killed by Duba.
[4]
The first respondent had encountered Duba for the first time on a
prior occasion when he had visited her home on a Sunday afternoon
and
had sought the deceased. When she informed Duba that her husband had
gone to church he, in turn, told her that the deceased
had been
intimate with his (Duba‟s) wife. This came as a surprise to the
first respondent. When the deceased returned and
was confronted by
the first respondent about the accusation made by Duba, he had denied
it.
[5]
At the time of the incident, the first respondent‟s youngest
child was 18-months- old. Another was 10-years-old. A third
was
12-years-old and the eldest was 22-years- old. They are the second to
fifth respondents respectively.
[6]
The first respondent had discovered only after Duba‟s arrest
that he was a policeman. On the two occasions that Duba had
visited
the deceased‟s house, he was dressed in civilian clothing. The
first respondent was uncertain about whether the deceased
had indeed,
been intimately involved with Duba‟s wife. The first respondent
did, however, recall finding a letter, which
she identified in court,
ostensibly written by Duba‟s wife and addressed to the
deceased. The letter was suggestive of a
romantic relationship
between the deceased and Duba‟s wife.
[7]
Ms Tebogo Portia Khumalo (Tebogo), the fifth respondent, the eldest
daughter of the deceased and the first respondent, testified
about
the events of the day in question. At that time she was a student
enrolled at the Pretoria Technikon. She recalled her mother
bringing
her youngest sibling to her bedroom and then departing. Shortly
thereafter she heard shots being fired. She went towards
her mother‟s
bedroom and saw sparks flying and heard her mother screaming. Tebogo
was petrified. Her mother ran into the
passage, picked up her brother
and ran out of the house. Tebogo then made her way towards her own
bedroom and saw the deceased
running into a passage. Duba pursued the
deceased and when he encountered Tebogo in the passage, asked her
where her father was.
She answered that she did not know and re-
entered her bedroom where she hid between the window and the bed. The
deceased went
into the bathroom and locked himself in. She later
heard a window being shattered and shots being fired. The deceased
emerged from
the bathroom and entered her bedroom. Duba tried to kick
her bedroom door down. The deceased undertook to come out and pleaded
with Duba not to shoot, informing him that there was a child in the
room. The deceased proceeded to open the door. More shots were
fired
and Tebogo heard the deceased physically struggling with Duba. When
she emerged from her bedroom, she saw the deceased lying
close to the
kitchen door.
[8]
Captain Viljoen (Viljoen), a member of the South African Police
Service, presently employed at the Polokwane Criminal
Record
and Crime Scene Management Unit (the Unit), was stationed there
during December 2001. At that time, the commanding officer
was
Lieutenant-Colonel Makafola (Makafola). Viljoen was the most senior
officer after Makafola. The Unit was located on the corner
of
Schoeman and Bodenstein Street in Polokwane. Viljoen had worked with
Duba. He testified that members of the Unit did not wear
police
uniforms. Members travelled to crime scenes in unmarked police
vehicles assigned to them. The Toyota Hilux motor vehicle
which Duba
had used on the day in question was such a vehicle. It had a Northern
Province registration reflected on the vehicle‟s
number plate.
Civilians would have no indication that it was a police vehicle.
Viljoen had been the duty officer during the week
when the deceased
was shot and killed. With reference to official documents presented
during the trial he confirmed that at the
material time two members
of the Unit were on standby to attend crime scenes within Polokwane
and the surrounding areas of Mangkweng,
Mogoadi and Malebogo. Duba
was identified as one of the members on standby. The following part
of Viljoen‟s evidence bears
repeating:
'Being
on
standby
means
that
you
are
responsible
for
standby
activities
during
and
after
hours.
The standby activities means
that a person is allocated a state phone and a state vehicle where
the vehicle is garaged at
a specific place predetermined. Then whenever the person is activated
by
means
of
the
cell
phone
to
do
standby
activities
he
will
then
place
himself
on
duty
in
his
pocket book, he
will move to
the place
where the
activity
is, finalise
the
activity,
come back
to
the
place
which
was
determined
for
the
garaging
of
the
vehicle,
garage
the
vehicle
and
then
place [himself] off duty
again in his pocket book.'
[9]
It is common cause that Duba had not made an entry in his pocket book
before he drove out to the deceased‟s house. Furthermore,
he
had not, during that time, been dispatched to do duty at any crime
scene. The duty areas that Duba and his colleague were assigned
to
did not include Seshego, where the deceased resided.
[10]
The Toyota vehicle which Duba had used had been assigned to the Unit
and was required to be garaged at the South African Police
barracks
in Seshego. This, according to Viljoen, meant that the vehicle had to
remain at the barracks until Duba and the other
member of the unit
were „activated‟ to attend a crime scene. After
completing their tasks they were obliged to return
the vehicle to the
barracks. At the material time, Duba and his standby colleague were
residing at the barracks. This was a requirement
when a member was on
standby duty.
[11]
Duba and his colleague were required to attend a daily inspection at
the Unit‟s offices in Seshego between 07h00 and
07h30. They
would thereafter be required to attend at police stations where they
might collect cases for investigation. The distance
between the
barracks and the Unit‟s Seshego office is 22 kilometres.
[12]
During the morning of 24 December 2001, just before 07h00, Viljoen
received a phone call from Duba, who informed him that he
had shot
someone and that he was presently at the Seshego police station where
the barracks are also situated. He required Viljoen
to come and
collect the police cellular telephone which had been assigned to him.
Viljoen travelled to the police station and was
told that Duba did
not want to see him. At that time the Toyota motor vehicle was parked
at the police station. According to Viljoen
the distance from the
Seshego police station to the deceased‟s house is approximately
six kilometres. Upon checking the vehicle‟s
official record,
Viljoen found that Duba had used it to travel a distance of 431
kilometres, the purpose of which was not noted.
Viljoen recorded that
usage as being unauthorised. Under cross-examination he conceded that
perhaps not all of it was unauthorised.
He had arrived at the prior
conclusion on the basis that the travelling had not been accounted
for. He could not investigate that
aspect any further because Duba
was in custody.
[13]
Viljoen testified that Duba had never been issued with an official
police firearm. Viljoen explained that being a fingerprint
investigator, like Duba, was the first step towards becoming a
fingerprint expert. As far as
Viljoen was aware, no one had
'activated' Duba to attend a crime scene during the morning of the
events in question.
[14]
The last witness to testify was Warrant Officer Selepe (Selepe). He
was the colleague on standby duty with Duba during the
week in which
the deceased was killed. The duty week stretched from Friday to
Friday. Selepe was adamant that the Toyota vehicle
assigned to them
could only be used for official duties and not for private errands.
Like Duba, Selepe slept at the barracks during
the duty week. He
confirmed that he and Duba had been issued with an official cellular
telephone which was used to contact them
in the event that they were
to be placed at a crime scene.
[15]
Selepe described the events of the morning during which the deceased
was killed. He was in his room preparing to go to work
when Duba came
to make arrangements for them to travel to the office together. They
agreed at 06h00 that they would leave at 07h00.
Approximately 45
minutes later Duba came to him holding a bleeding arm. He informed
Selepe that he had shot someone and handed
over the car keys and the
official cellular telephone. Duba‟s private firearm was on his
hip. He did not see Duba thereafter.
Under cross-examination Selepe
was adamant that the work of the Unit was confined to dealing with
fingerprints and taking photographs
of crime scenes. He insisted that
the uniform branch were the principal crime fighters tasked with
arresting criminals. Selepe
resisted attempts by counsel on behalf of
the appellant to have him concede that his primary duty as a member
of the South African
Police Service was to actively protect citizens.
He repeatedly stated that the Unit‟s function was an
investigative one.
According to Selepe the unauthorised kilometres
recorded by Viljoen were due to Duba and not to him. He testified
that he had accounted
for all of his official travels and that he had
handed the keys to Duba, with an odometer reading 432 kilometres less
than that
ultimately recorded by Viljoen. According to Viljoen, given
its closeness to the barracks, Duba could quite easily have travelled
to the deceased‟s house using public transport. For
completeness, it is necessary to record that Viljoen‟s
testimony
was ultimately unchallenged that an hourly allowance of
R16.80 payable to officials of the South African Police Service who
are
on standby duty per 24 hour period is not paid to members of the
Unit because of a statutory exemption.
[16]
The court below (Molefe AJ) had regard to two decisions of the
Constitutional Court, namely,
K
v
Minister
of
Safety
and
Security
[2005] ZACC 8
;
2005 (6) SA 419
(CC) and
F
v
Minister
of
Safety and
Security
[2011] ZACC 37
;
2012 (1) SA 536
(CC), and
stated that in adjudicating whether there should be vicarious
liability, the focus is now on whether the connection between
the
conduct of the policeman and his employment was sufficiently close to
render the Minister liable. Molefe AJ said the following
(in para 8):
'The
establishment
of
this connection
is
assessed by explicit recognition of the normative factors
that point to vicarious
liability.' (Footnote omitted.)
Following
the Constitutional Court‟s lead, she held that the fact that a
member of the South African Police was on standby,
rather than active
duty, and the question of payment for that duty was not
determinative.
[17]
The following paragraph of the judgment of the court below sets out
the
ratio
for its conclusion that the appellant was
vicariously liable (in para 20):
'Although
the
Second
Defendant
‟
s
murdering
of
the
deceased
had
nothing
to
do
with his official
duties,
I am of the view that there is a sufficiently close link between his
act for his own personal
gratification
and
the
business
of
the
First
Defendant.
In
casu
,
the
Second
Defendant
was
on
standby
duty
as
instructed
by
his
employer,
the
First
Defendant.
He
utilized
the
employer‟s
vehicle to attend to his
personal matters by going to murder the deceased, which action was an
intentional deviation
from his duties.'
[18]
The question in this appeal is whether that reasoning and the
conclusion are correct. The judgment of the Constitutional Court
in
F
is instructive. In para 40, Mogoeng J, as he then was, restated
the general rule in relation to vicarious liability, namely, that
an
employer is vicariously liable for the wrongful acts or omissions of
an employee committed within the course and scope of employment,
or
whilst the employee was engaged in any activity incidental to it. He
went on to record that two tests apply in determining
vicarious liability: The first applies
where an employee commits a delict when
going about
the employer‟s business, this is referred to as the standard
test. The second is where the wrongdoing occurs
outside the course
and scope of employment, those are referred to as „deviation
cases‟. This matter, as in
F,
is a deviation case.
[19]
With reference to the decision of this Court in
Feldman (Pty) Ltd
v Mall
1945 AD 733
, the Constitutional Court in
F
examined the rationale behind holding an employer liable where an
employee had deviated from his or her duties. In para 45 of
F
the following appears:
'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 out 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. Should they, however, act inconsistently with the employer‟s
core
business,
some link between the employers‟
business and the
delictual
conduct
must be
established
before the employers may be held vicariously liable.'
[20]
In
Minister of Police v Rabie
1986 (1) 117 (A) this Court was
dealing with a claim for damages arising from the wrongful arrest,
detention and assault of an individual.
The acts complained of had
been perpetrated by an off-duty mechanic employed by the South
African Police Service. At the time of
the arrest, he had not been
wearing a police uniform. He had, however, identified himself as a
policeman, took the person he had
arrested to the police station,
filled-out a police docket and wrongfully charged his victim with
attempted housebreaking and then
detained him. At 134C-E the
following appears:
'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.
And
it
may
be
useful to
add
that
according
to
the
Salmond
test
.
. . :
“
a
master
.
.
.
is
liable
even
for
acts
which
he
has
not
authorized
provided
that
they
are
so
connected
with
acts
which
he
has
authorized
that
they
may
rightly
be
regarded
as
modes
–
although improper modes –
of doing them . . .”‟
[21]
In
K
, decided before
F
, the Constitutional Court was
intent on explaining that the application of this test is not merely
fact based. In our constitutional
order, the test for vicarious
liability cannot be shorn of normative content and social policy. In
K,
the Constitutional Court appreciated that the
application of the test on the aforesaid basis will be difficult and
will involve
courts drawing difficult lines. Utilising the test in
Rabie
as a basis, the Constitutional Court formulated the test
for determining vicarious liability in deviation cases as follows
(Para
32):
'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 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.)
[22]
At this stage, it is necessary to have regard to the facts in
K
and
F
and to reflect on how, applying the test referred to
above, the Constitutional Court arrived at a conclusion in terms of
which the
State was there held vicariously liable.
[23]
In
K,
three policemen who had offered Ms K a lift home
raped her in a police vehicle and then threw her out. They were on
duty at the
time. The then prevailing police standing orders
prohibited the transport of unauthorised passengers in police
vehicles. The Court
considered it to be a matter of profound
importance that Ms K‟s right to security of the person,
dignity, privacy and substantive
equality were implicated. As
important, was the consideration that it was part of the work of the
police to ensure the safety and
security of all South Africans. The
Constitutional Court was firm in its view that the vulnerability of
women and children to sexual
violence and South Africa‟s
international obligations in that regard were factors that could not
be ignored.
[24]
In para 44 of
K
the following appears:
'The
objective
element
of
the
test
which
relates
to
the
connection
between the deviant conduct
and the employment,
approached with the spirit, purport and objects of the Constitution
in mind,
is
sufficiently
flexible
to
incorporate
not
only
constitutional
norms,
but
other
norms
as
well.
It
requires
a
court,
when
applying,
it
to
articulate
its
reasoning
for
its
conclusions
as
to
whether
there is a sufficient
connection between the wrongful conduct and the employment or not.
Thus
developed,
by the explicit recognition of the normative content of the objective
stage of the te
st,
its application should
not offend the Bill of Rights or be at odds with our constitutional
order.'
[25]
Importantly, the Constitutional Court went on to state (in para 45):
'The
common-law test for vicarious
liability in deviation cases as developed in
Rabie’s
case and
further developed earlier
in this judgment needs to be applied to new sets of facts in each
case
in
the
light
of
the
spirit,
purport
and
objects
of
our
Constitution.
As
courts
determine
whether
employers are liable in
each set of factual circumstances, the rule will be developed. The
test is
one
which
contains
both
a
factual
assessment
(the
question
of
the
subjective
intention
of
the
perpetrators of the
delict) as well as a consideration which raises a question of mixed
fact and
law,
the
objective
question
of
whether
the
delict
committed
is
'
sufficiently
connected
to
the
business of the employer”
to render the employer liable.'
[26]
In
K,
the Constitutional Court took into account that the rape
perpetrated by the policemen was clearly a deviation from their
duties
but considered it significant that when they committed the
rape, they were simultaneously omitting to perform their duties as
policemen.
That consideration was relevant in determining vicarious
liability and will be particularly relevant in answering the second
question
posed in
Rabie
, namely, whether there was a
sufficiently close connection between the delict and the purposes and
business of the employer.
[27]
The Constitutional Court thought that in addition to the
statutory and constitutional duty the police
bore to
prevent crime and protect members of the public, their victim in K
had placed her trust in them when they had offered to
assist her in
getting her home safely. Paragraphs 52 and 53 of that judgment bear
repeating:
'Our
Constitution
mandates
members
of
the
police
to protect members of the
community and to
prevent
crime. It is an important mandate which should quite legitimately and
reasonably result
in
the
trust
of
the
police
by
members
of
the
community.
Where
such
trust
is
established,
the
achievement of
the tasks of
the police will be
facilitated. In determining whether the Minister is
liable
in these circumstances,
courts
must
take account of
the
importance
of
the
constitutional
role
entrusted
to
the
police
and
the
importance
of
nurturing
the
confidence
and
trust
of
the
community in the police
in order to ensure that their role is successfully performed. In this
case,
and
viewed
objectively,
it
was
reasonable for
the
applicant
to
place
her trust
in
the policemen
who were in uniform and
offered to assist her.
Thirdly,
the
conduct
of
the
policemen
which
caused
harm
constituted
a
simultaneous
commission
and
omission.
The
commission
lay
in
their
brutal
rape
of
the
applicant.
Their
simultaneous
omission
lay
in
their
failing
while
on
duty
to
protect
her
from
harm,
something
which they bore a general
duty to do, and a special duty on the facts of this case. In my view,
these three inter-related
factors make it plain
that viewed against the
background of our
Constitution,
and,
in
particular,
the
constitutional
rights
of
the
applicant
and
the
constitutional
obligations
of
the
respondent,
the
connection
between
the
conduct
of
the
policemen
and
their
employment was
sufficiently close to render the respondent liable.'
[28]
In
F,
the relevant facts were as follows. At the material time
Ms F was 13-years- old and had been to a nightclub in George. During
the
early morning hours she was offered a lift home by a member of
the South African Police Service, who was on standby duty and
entitled
to the prescribed hourly tariff for being on standby duty.
It meant that he could, at any time, be called upon to attend to any
crime-related incident. He had been assigned an unmarked police
vehicle to enable him to discharge police functions when required
to
do so. The police vehicle had been equipped with a police radio which
Ms F noticed. After the policemen had dropped off two
other
passengers, Ms F moved to the front passenger seat and noticed a pile
of police dockets bearing his name and rank. When she
asked about the
dockets, he told her that he was a private detective which she
understood to mean that he was a policeman.
[29]
Instead of driving Ms F home the policeman drove to a dark spot where
he stopped the vehicle. Realising that she was in danger
she alighted
and fled and hid herself from him. That was not the end of her
ordeal. The policeman waited for her to emerge and
when he saw her
hitchhiking stopped alongside her and once again offered to transport
her to her home. Even though she was apprehensive,
she relented and
accepted the offer because she was desperate. A short while
thereafter he turned off the road and despite her
efforts to flee,
overpowered and raped her. He subsequently took her home and
threatened to kill her if she reported the incident.
[30]
The Constitutional Court considered the following parts of Ms F‟s
testimony important (in para 13):
'[S]he
said
that
the
fact
that
she
believed
Mr
Van
Wyk
to
be
a
policeman
played
a
role
in
allaying her fears,
because she “trusted” him (hom vertrou het) as, at that
stage, she thought he
was
a
detective.
She
chose
to
repose
her
trust
in
a
person
of
whom
she
was
suspicious
because she understood
him to be a policeman.'
[31]
The importance of members of the public considering it safe to repose
their trust in members of the South African police was
a particularly
significant factor. In
F,
the Constitutional Court said
the following (in para 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 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.' (Footnote omitted.)
Right
at the outset in
F
, the Constitutional Court pointed out that
in adjudicating whether the Minister should be held vicariously
liable, two related
factors were critical: First is the State‟s
constitutional obligation to respect, protect and promote the
citizens‟
right to dignity and to freedom and security of the
person, to which is related the establishment of a police service for
the execution
of the constitutional obligation to protect and secure
the inhabitants of our country. Second is the trust the public was
entitled
to repose in the police.
[32]
In
F
, as was found by the Constitutional Court, Ms F with an
apparent appreciation of the police service‟s obligation to
protect
her, looked for protection to the policeman who had offered
her a lift. She did so as a result of his employment as a policeman,
which placed him in a position of trust. It is this trust that is
necessary for the fulfilment of the police service‟s mandate.
It was this trust that he violated. The following three paragraphs in
F
are important (paras 79-81):
'There
are
factual
differences
between
this
case
and
K.
There
the
policemen
were
on
duty
and
in
uniform,
driving
a
marked
police
vehicle.
Ms
K
placed
her
trust
in
them
for
those
clear
reasons,
which
created
the
link
between
the
policemen‟s
employment
and
their
subsequent
misdeed. The factors here
are admittedly more tenuous.
It
is
so
that Mr Van Wyk was not in uniform, that his police car was unmarked
and he was not on
duty
but on standby. But his use of a police car facilitated the rape.
That he was on standby is
not an irrelevant
consideration. His duty to protect the public while on standby was
incipient. But
it
must be seen as cumulative to the
rest of
the factors that point to
the necessary connection.
He
could
be
summoned
at
any
time
to
exercise
his
powers
as
a
police
official
to
protect
a
member of
the public. What is more,
in that time and space he had the power to place himself
on duty. I am therefore
satisfied that a sufficiently close link existed to impose vicarious
liability
on
Mr Van Wyk‟s employer.
In
conclusion:
The
police
vehicle,
which
was
issued
to
him
precisely
because
he
was
on
standby, enabled Mr Van
Wyk to commit the rape. It enhanced his mobility and enabled him to
give a lift to Ms F.
Further, when Ms F re-entered the vehicle, she understood Mr Van Wyk
to be
a
policeman. She
made this deduction from
the dockets and
the
police
radio
in
the vehicle.
In
other words, he was
identifiable as a policeman. And, in fact, he was a policeman.
Pivotal is the normative
component
of
the
connection
test.
Beyond
her
subjective
trust
in
Mr
Van Wyk is the
fact
that
any
member
of
the
public,
and
in
particular
one
who
requires
assistance
from
the
police, is entitled to
turn to and to repose trust in a police official.'
[33]
Returning to the present case, it is necessary, at inception, to have
regard to the subjective element. In the present case,
Duba was
convinced that he was a cuckold. He travelled to the home of the
respondents to kill the person he considered to be his
wife‟s
lover. That was the motivation for the tragic act that followed. It
was a radical deviation from the tasks incidental
to his employment.
[34]
I now turn to the objective element, namely, whether there is a
sufficiently close link between Duba‟s acts for his own
interests and purposes and his duties as a policeman. None of the
respondents identified Duba as a policeman. None reposed trust
in
him. The only police accoutrements were the radio and the vehicle.
The radio was not visible or seen and the vehicle was unmarked.
It is
true that he used the police vehicle to travel to their home but he
could just as easily have used public transport. The
area to which he
travelled was not an area to which he had been assigned.
[35]
I am not unmindful that Duba was a member of the South African Police
Service and that the police are required to serve and
protect.
However, it is not entirely without significance that Duba was a
member of a unit which interfaced with the public on
a limited basis
and mainly after a crime had already been perpetrated. The Unit was
not a division of the police to which the public
would intuitively
turn for protection. I hasten to add that this does not mean that, in
appropriate circumstances, members of the
public would not be
entitled to repose trust in it and to look to it for protection, the
breach of which might lead to vicarious
liability being imposed on
the appellant.
[36]
This is a difficult case
because of the terrible consequences for the respondents.
The
trauma
they
suffered
in
witnessing
a
husband
and
father
being
gunned-down
in
front of them is difficult
to fully appreciate. Drawing a line that does not hold the Minister
liable for the loss of
their breadwinner is in itself difficult. In
K,
the Constitutional
Court in exhorting courts to keep in mind the values of the
Constitution when adjudicating cases
such
as the
present stated
that
this does not mean
that
an
employer
will
inevitably
be
saddled with damages
simply because the consequences are horrendous.
[2]
[37]
Considering the interplay between the factors set out by the
Constitutional Court, I am unable to conclude that there is a
sufficiently close link between Duba‟s actions for his own
interests and his duties as a policeman.
[38]
Counsel on behalf of the police accepted that, given the
circumstances, it would not be appropriate to insist on a costs order
against the respondents. It is necessary to record that before us,
there was no appearance on behalf of the respondents, ostensibly
because of a lack of funds. For the reasons aforesaid the following
order is made:
1.
The appeal is upheld and no order is made as to costs.
2.
The order of the court below is set aside and substituted as follows:
‘
The
plaintiffs‟ claims are dismissed and no order is made as to
costs.
M
S NAVSA
ACTING
DEPUTY PRESIDENT
APPEARANCES:
FOR
APPELLANT:
Adv. S Joubert Instructed by:
The State Attorney, Pretoria
The State Attorney, Bloemfontein
FOR
RESPONDENTS:
Not presented
Abide the decision of the Court
[1]
Formerly
known
as the North
Gauteng High Court, Pretoria (GNP) between 1 March 2009 and 23
August
2013 in terms of the Renaming of High Courts
2014 (3) SA 319
and has
since been renamed the
Gauteng
Division of the High Court Pretoria.
[2]
In para 23.