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[2019] ZAGPJHC 406
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E S and Another v Minister of Police and Another (10735/2013) [2019] ZAGPJHC 406 (8 August 2019)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
:
10735/2013
DATE
:
8
th
August 2019
In
the matter between:
S
,
E,
Personally
and for and on behalf of her minor son:
S
,
N
First Plaintiff
S
,
T
Second Plaintiff
and
THE
MINISTER OF
POLICE
First Defendant
LUKHELE
,
CONSTABLE
LWAYIPHI
Second Defendant
Coram:
Adams J
Heard
:
06 August 2019
Delivered:
08 August 2019
Summary:
Delict – shooting and killing of breadwinner by off-duty
policeman – vicarious liability – application of legal
principles – there needs to be a sufficiently close connection
between the delict and the business of the SAPS
ORDER
(1)
The claims of the first and second
plaintiffs against the first defendant are dismissed with costs.
(2)
The first and the second plaintiffs,
jointly and severally, the one paying the other to be absolved, shall
pay the first defendant’s
cost of this action.
JUDGMENT
Adams
J:
[1].
An issue central to the dispute between the
parties in this action relates to vicarious liability on the part of
the first defendant
(the Minister) for the conduct of his employee,
the second defendant, whilst off-duty, who in a road rage incident
shot and killed
the husband of the first plaintiff. The first
plaintiff sued the minister in her personal capacity and in her
representative capacity
on behalf of her minor son, for loss of
support, as did the second plaintiff, the adult son of the first
plaintiff and the deceased
person.
[2].
The first plaintiff’s husband (‘the
deceased’) was shot and killed by the second defendant,
Constable Lukhele
(‘Lukhele’), a policeman in the employ
of the South African Police Services (‘the SAPS’), in an
apparent
road rage incident after a collision between the private
vehicle of Lukhele and the deceased’s vehicle. The second
defendant
felt aggrieved by the fact that, in his opinion, the
deceased was the cause of the accident, and immediately after the
collision
he approached the deceased and confronted him. During the
ensuing altercation the second defendant shot the deceased in the
leg,
grabbed the car keys of the deceased and returned to his
vehicle. After a minute or two the deceased approached the second
defendant,
who by then had returned to his vehicle, and a further
argument ensued, during which squabble three more shots were fired by
the
second defendant at the deceased, which were the cause of the
deceased’s death. In a twist of fate the deceased turned out
to
be Police Captain employed at another police station. Both the second
defendant and the deceased were not on duty when this
tragic incident
played itself out on a Saturday night at about 22:30 in Kathlehong.
The deceased was accompanied on the night in
question by his two
sons, who were passengers in his vehicle when the whole tragic
incident happened.
[3].
The plaintiffs claim loss of support from
the minister, alleging that their loss of support resulted from the
intentional killing
of the deceased by the second defendant and for
which conduct the minister is vicariously liable.
[4].
The only remaining dispute between the
parties relates to whether Lukhele’s unlawful conduct can and
should be attributed
to the minister on the basis of indirect or
vicarious liability. It is the case of the plaintiffs that this court
should find vicarious
liability despite the common cause fact that
Lukhele was not on duty on the night of Saturday, the 18
th
of August 2012, and he was not driving an official police vehicle.
There is no connection between the shooting incident and Lukhele’s
employment as a police officer, other than the fact he used his
police issued firearm to shoot and kill the deceased. Lukhele was
not
dressed in an official police uniform and the indications are that he
did not at any stage identify himself as a police officer.
[5].
It bears emphasising that the shooting
incident was unrelated to the employment by the second defendant as a
police officer. It
had everything to do with the fact that the
private vehicle of the second defendant was damaged in a motor car
collision, which
collision Lukhele believed had been caused by the
deceased.
[6].
Mr Mathebula, Counsel for the plaintiffs,
submitted that the vicarious liability on the part of the minister
arises from the fact
that
Lukhele
was lawfully in possession of the firearm only
because he was a member of the SAPS. He was issued with an official
police firearm
and he
received training in
his official capacity as a member of the SAPS to handle firearms. He
would have received training on the use
and handling of a firearm and
he would have been instructed on when and how to resort to using a
gun. In the end, so Mr Mathebula
submitted, Lukhele was certified as
a fit and a proper person to possess a firearm and he understood the
risks involved in the
use of a firearm. Thereafter, he would have
been issued a firearm licence and a firearm which he would have been
required to use
in the course and scope of his employment as a member
of the SAPS. These common cause facts, together with the fact
that
the second defendant was permitted to keep and retain possession
of his police issue firearm even when he was not officially on
duty
as a police officer, means, so it was argued on behalf of the
plaintiffs, that vicarious liability should be attributed to
the
minister for the conduct of the second defendant when he used the gun
unlawfully.
[7].
The sole question which I am required to
adjudicate is whether the minister should be held vicariously liable
for the conduct of
Lukhele on that tragic night of the 18
th
of August 2012.
The
test for vicarious liability
[8].
The recent judgment by Eksteen AJA in
The
Minister of Safety and Security v Msi
[2019]
ZASZA 26 (28 March 2019) contains a useful and very helpful summary
of the principles relating to vicarious liability and
the recent
developments in that regard. I find myself in agreement by the views
expressed by the SCA in that well researched and
well-reasoned
judgment, which, in any event is binding on this court by virtue of
the
stare decisi
s
doctrine. The facts in that matter were distinguishable from the
facts in this matter notably because in
Msi
the police officer committed the delict
whilst officially on duty at a time when he had deviated from his
official duties and had
embarked on frolic of his own. The principles
however find application in this matter and I intend borrowing
liberally from Eksteen
AJA’s judgment.
[9].
As a general rule, 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 reasonably incidental to it. In
F v Minister of Safety and Security
2012 (1) SA 536
(CC), Mogoeng J explained:
‘
Two
tests apply to the determination of vicarious liability. One applies
when an employee commits the deed while going about the
employers
business. This is generally regarded as the “standard test”.
The other test finds application where wrongdoing
takes place outside
the course and scope of employment. These are known as “deviation
cases”.’
[10].
In this matter there can be no doubt that
Lukhele was not advancing the interests of his employer in any way,
whether improperly
or otherwise. He was not acting in the course and
scope of his employment. If the minister is to be held vicariously
liable in
this matter, it should be considered in the context of
‘deviation cases’. The question is this: do the legal
principles
relating to ‘deviation cases’ find application
in casu
?
[11].
The legal foundation of the test for
vicarious liability in deviation cases was initially developed in two
decisions of the Supreme
Court of Appeal during the previous century;
Feldman (Pty) Ltd v Mall
1945 AD 733
and
Minister of Police v
Rabie
1986 (1) SA 117
(A). The test was
further refined by the Constitutional Court in
K
v Minister of Safety and Security
[2005] ZACC 8
;
2005
(6) SA 419
(CC) and in
F v Minister of
Safety and Security
(supra). It is
instructive to have regard to these developments before seeking to
apply the test to the facts of the present case.
[12].
In
Feldman
a servant of the defendant had been given custody of a motor vehicle
and a number of parcels with instructions to drive the vehicle
and to
deliver the parcels to various customers in town. Having completed
his deliveries he was to return the vehicle to a certain
garage.
Instead, however, he drove the vehicle to a place some distance away,
on his own business, and there consumed alcohol which
significantly
impaired his driving ability. Shortly after departing from this
location and on route back to the garage he collided
with and killed
the father of two minor children. This SCA held that he had never
entirely abandoned his master’s work as
he had throughout
retained the custody and control of the vehicle on behalf of his
master and that the master was therefore liable
for his negligence.
[13].
In the course of his judgment, however,
Watermeyer CJ discussed the common law position relating to vicarious
liability. He stated:
‘
If
an unfaithful servant, instead of devoting his time to his master’s
service, follows a pursuit of his own, a variety of
situations may
arise having different legal consequences.
If he abandons his
master’s work entirely in order to devote his time to his own
affairs then his master may or may not, according
to the
circumstances, be liable for harm which he causes to third parties.
If the servant’s abandonment of his master’s
work amounts
to mismanagement of it or negligence in its performance and is, in
itself, the cause of harm to third parties, then
the master would
naturally be legally responsible for that harm. . . If, on the other
hand, the harm to a third party is not caused
by the servant’s
abandonment of his master’s work but by his activities in his
own affairs, unconnected with those
of his master, then the master
would not be responsible.’
[14].
Watermeyer CJ also discussed the reasons
for imposing vicarious liability on a master and explained:
‘
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 a 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
a 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 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 to that harm.’
[15].
Rabie
was
decided some forty years after
Feldman
.
In
Rabie
,
an off-duty mechanic employed by the South African Police and dressed
in civilian clothes carried out an arrest purely for his
own
purposes. He was not employed to perform law enforcement duties and
he had clearly not acted in the course and scope of his
employment.
At the time of the arrest, however, he introduced himself as a
policeman and after arresting his victim took him to
the police
station, filled out a docket, wrongfully charged his victim with
attempted housebreaking and detained him. In the course
of the
judgment Jansen JA stated:
‘
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 a 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 . .
.’
[16].
K
came
before the Constitutional Court in 2005. It concerned the unlawful
kidnap and rape of an innocent woman by three policemen
on duty.
K
had been on a date with her boyfriend. The arrangement had been that
he would take her home at the end of the evening, but he had
met up
with a former girlfriend during the course of the evening which led
to a disagreement between
K
and her companion. When she asked him to take her home he refused and
she therefore decided to look for a telephone in order to
call her
mother so that she could collect her. As there was no telephone
available at the venue where they were she proceeded on
foot to a
nearby petrol station. There too she was unable to obtain access to a
telephone. However, in the shop attached to the
petrol station a
policeman in full uniform entered. He was the driver of a marked SAPS
vehicle and addressed her in fluent Afrikaans
asking where she was
headed. She advised that she wanted to go home and he offered to take
her there. In the vehicle there were
two other members of the SAPS,
also dressed in full uniform. They were all on duty. Instead of
taking her home, however, they kidnapped
and raped her.
[17].
The Constitutional Court accepted the test
enunciated in
Rabie
as a point of departure and further refined the test in order to give
effect to Constitutional norms. It held that in seeking to
establish
what constitutes a ‘sufficiently close link’ the court
should consider the need to give effect to the spirit,
purport and
object of the Constitution. It referred with approval to the dicta in
Feldman
and
Rabie
which I have set out above and O’ Regan J proceeded to state,
in respect of deviation cases:
‘
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 test, its application should not offend
the Bill of Rights or be at odds
with our constitutional order.’
[18].
The Constitutional Court concluded that the
police officers’ conduct bore a sufficient connection to their
employment as police
officers to attach vicarious liability to the
Minister. In applying the new refined tests for vicarious liability
three considerations
weighed heavily with the court: (a) the police
officers and their employer had a statutory and constitutional duty
to prevent crime
and to protect members of the public; (b) the police
officers had offered to assist K and she had accepted their offer and
by doing
so, reposed 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 committed
the rape on
K
;
simultaneously they had omitted to protect her from harm which they
had a general and special duty to do.
[19].
In
K
,
however, the Constitutional Court sought only to lay down the legal
parameters. O’ Regan J went on to explain:
‘
The
common-law test for vicarious liability in deviation cases as
developed in
Rabie’s
case and further developed earlier in this judgment need to be
applied to new sets of facts in each new 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 tests 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.’
[20].
The facts in
F
were similar to those in
K
.
A young teenage girl had been to a night club in George. In the early
hours of the morning she found herself stranded without
transport.
She was offered a lift home by an adult man in civilian clothes in an
unmarked vehicle. As it turned out he was a policeman
on standby duty
and the vehicle was a police vehicle which he was entitled to use by
virtue of the police functions which he might
be required to fulfil
if called upon. The vehicle was fitted with a radio which F noticed
when she entered the vehicle. Whist travelling
she noted a pile of
police dockets bearing the name and the rank of the police official.
Upon enquiry he advised that he was a
private detective, which
F
understood to mean that he was a policeman. Contrary to his earlier
undertaking, however, he drove the vehicle to a secluded spot
outside
of the town. The direction in which he drove caused F to become
suspicious and when the vehicle came to a stop at the secluded
spot F
alighted and fled. A short while later the vehicle departed and F
returned to the road side in order to seek a lift back
to town. A
vehicle approached and stopped to afford her a lift. Remarkably, it
was the same vehicle and the same driver. Despite
her misgivings she
reluctantly boarded the vehicle. This she did partly owing to her
desperate situation and partly because she
believed that he was in
fact a policeman and that she could for that reason trust him. He
abused that trust and raped her.
[21].
In
F
,
the majority in the Constitutional Court held that there was a
sufficiently close link between the conduct of the policeman and
the
business of his employer. Mogoeng J, writing for the majority, again
had an occasion to discuss the nature of the test to be
applied. He
held:
‘
As
O Regan J stated in
K
the second question “does not raise purely factual questions
but mixed questions of fact and law”. Accordingly, several
interrelated factors have an important role to play in addressing the
question whether the Minister is vicariously liable for the
delictual
conduct of Mr Van Wyk. The normative components that point to
liability must here, as K indicated, be expressly stated.
They are:
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 policemen’s
commission of rape and omission to protect the victim; and the
existence or otherwise of an intimate link
between the policemen’s
conduct and his employment. All these elements complement one another
in determining the state’s
vicarious liability in this matter.’
[22].
On a consideration of all these authorities
and applying the test which emerges, the SCA, in
Minister
of Safety and Security v Booysen
[2016]
ZASCA 201
, summarised the approach to be adopted thus:
‘
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.’
[23].
It seems to me that this approach
constitutes a fair reflection of what is required in terms of
K
and F.
Application
of the test
[24].
Applying the test in
K
in the present case the answer to the first question, which is
subjective, does not establish liability. Lukhele’s driving
of
his own private motor vehicle on the night in question was purely for
his own purposes. He was attending to his own private
and social
business relating to personal affairs and he had no police function
to perform at the time when the accident happened.
It cannot possibly
be suggested that he was on the road at the time by virtue of his
employment as a police officer. He was not,
for example, on his way
to investigate a criminal complaint or to go and arrest a suspect.
There was nothing in the conduct of
Lukhele that suggests that he
subjectively intended to advance the interests of the SAPS. It bears
emphasising that strictly speaking
this was not even a ‘deviation’
case as the second defendant was not even on duty shortly before or
after or during
the shooting incident.
[25].
I turn therefore to consider the second leg
of the inquiry, whether there is a sufficiently close link between
the shooting of the
deceased and the business of the SAPS. This
enquiry is objective and it involves issues of fact and law. The
point of departure
is the recognition that the constitutional duty
resting on the state, and more particularly on the police, to protect
members of
the public against crime and violence provides a normative
basis for holding the state liable for the wrongful conduct by
policemen.
This liability, however, will only be imposed where there
is a ‘sufficiently close connection’ between the conduct
of the policemen and their employment.
[26].
In
K
and in
F
the trust which the public is entitled to place in the police and
which the victims had placed in the policemen involved was pivotal
to
the conclusion reached. It weighed heavily with the court that an
innocent citizen in distress had reposed her trust in the
police as
she was entitled to do and the policeman in issue had breached that
trust. Thus, in
F
,
Mogoeng J held:
‘
In
addressing the question of Mr Van Wyk’s personal liability and
his employer’s vicarious liability it should make
little
difference that he was on standby duty, for which he was being paid.
What matters is whether the trust placed in him as
a policeman by a
vulnerable member of the public, creates a sufficiently close
connection between his delictual conduct and his
employment.’
[27].
The trust in issue in
F
was explained thus:
‘
.
. . Additionally, if his employment as a policeman secured the trust
of the vulnerable person placed in him, and 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
contravene, the law’.
[28].
In casu
I
am not convinced that in the circumstances of this matter it can be
said that there was an element of trust involved in the encounter
between the deceased and Lukhele. Both of these persons were on their
own personal missions on a Saturday night and they were brought
together literally by accident and a sheer coincidence. It cannot
possibly be said that the deceased, in the heat of the moment
and the
altercation, was entitled to place his trust in Lukhele to maintain
decorum, law and order.
[29].
What is more is that Lukhele was not on
duty. He was not dressed in uniform and he was not driving a marked
police vehicle. It is
so that he was armed with a police issued
firearm and he utilised the very same gun to shoot and kill the
deceased. The question
is whether these factors should lead me to the
conclusion that a sufficiently close link had been established
between the conduct
of Lukhele and the business of the SAPS. The
answer to this question, in my judgment, is no. I am of the view that
the shooting
incident and the killing of the deceased is so far
removed in time and space from the business of the SAPS and the
employment of
the second defendant as a police officer that it can
safely be said that a link between the two is non-existent.
[30].
Nothing in the facts suggests that the
deceased even knew that Lukhele was a police officer. The deceased
therefore probably did
not place his trust in Lukhele by virtue of
him being a policeman. From where the deceased stood Lukhele was not
a policeman employed
to protect him but rather just another motorist
with whose vehicle he had a collision.
[31].
It was argued by Mr Mathebula that the
commission of the delict was facilitated by Lukhele’s
employment as a policeman and
that but for such employment the
assault would not have occurred. Furthermore, as a police officer
Lukhele had an obligation to
protect and serve the community whether
he was on duty or off duty. This is the reason why he was allowed to
carry his service
firearm, which was issued to him by the SAPS, even
when he was not officially on duty. As a police officer, so the
submissions
on behalf of the plaintiffs continued, the standard of
his behaviour was measured at a very high standard, as he, as a
police official
had been entrusted with the protection of the
community at all times. He was obliged to carry the mandate as a
police officer,
which meant that he had the power to lawfully arrest
a suspect for committing a crime even when he was not on duty. All of
these
facts, which are common cause, so the argument on behalf of the
plaintiffs was concluded, translate into a ‘sufficient
connection’
between the wrongful conduct on the part Lukhele
and his employment as a police officer. This, in turn, means that
vicarious liability
attaches to the minister.
[32].
I cannot agree with these submissions by
the plaintiffs. In the context of the present case and the fact that
he was not on duty,
not dressed in uniform and travelled in his
personal vehicle means that, irrespective of his employment as a
policeman and the
fact that he had been issued with an official
police firearm, probably meant that the result would always have been
precisely the
same.
[33].
In casu
the
consideration that the public are generally entitled to put their
trust in the police is, in my judgment, not a factor to be
considered
in the application of the test for vicarious liability. This fact
therefore, on its own, distinguishes
K
and
F
from
this matter. As was held in
Booysen
by the SCA:
‘
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”.’
[34].
In
Booysen
a police officer on duty had utilised his police issue firearm to
shoot his girlfriend. The fact that the police firearm was utilised
in the shooting weighed heavily with the trial court when it held the
minister liable for the conduct of a police official. On
appeal,
however, the SCA held:
‘
The
finding of liability based on the mere fact of the SAPS issuing a
firearm to a police officer, amounts to the imposition of
the 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.’
[35].
On the basis of this principle as
enunciated by the SCA in
Booysen
,
I am of the view that the arguments on behalf of the plaintiffs are
not sustainable. I do not think that the use of the police
issue
firearm in the murder leads to the conclusion that the employment of
Lukhele provided the means to commit the crime. Lukhele
clearly
reacted angrily to the collision between this vehicle and that of the
deceased, whose negligence he perceived to have caused
the accident
and he shot and killed the deceased in a fit of rage. Had he not been
in possession of the police firearm he would
in all probability have
utilised some other object to commit the crime. As stated earlier,
the death of the deceased would, on
the facts of this case, have
occurred in any event.
[36].
For these reasons I find that there is not
a sufficiently close connection between the business of the SAPS and
the conduct of the
second defendant on the night of the 18
th
of August 2012 to justify the imposition of vicarious liability.
[37].
The first defendant therefore cannot be
held liable for the damages suffered by the plaintiffs. Their claims
against him stand to
be dismissed.
Order
Accordingly,
I make the following order:-
(1)
The claims of the first and the second
plaintiffs against the first defendant are dismissed with costs.
(2)
The first and the second plaintiffs jointly
and severally, the one paying the other to be absolved, shall pay the
first respondent’s
cost of the action.
________________________________
L R ADAMS
Judge of the High
Court of South Africa
Gauteng Local
Division, Johannesburg
HEARD ON:
6
th
August
2019
JUDGMENT DATE:
8
th
August
2019
FOR THE FIRST &
SECOND PLAINTIFFS
Advocate L L Mathebula
INSTRUCTED BY:
H C Makhubele
Incorporated
FOR
THE FIRST DEFENDANT:
Mr
W Sekwati
INSTRUCTED
BY:
The
State Attorney, Johannesburg
FOR
THE SECOND DEFENDANT:
No
appearance
INSTRUCTED
BY:
No
appearance