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[2023] ZAGPPHC 424
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A.K.S obo O.K.S and Another v Minister of Police [2023] ZAGPPHC 424; 27010/2018 (5 June 2023)

FLYNOTE:
PERSONAL
INJURY – Police shooting – Officer off duty –
Girlfriend shot by officer at their residence – Vicarious

liability and loss of support for minor children – Contention
that by permitting officer to be in possession of firearm whilst
off
duty, officials of Minister created a risk – Failed to comply
with provisions of South African Police Service Standing
Order 48 –
Unsuccessful in proving incompetence to possess firearm –
Failed to meet requirements to hold Minister vicariously
liable for
unlawful conduct of officer – Claim dismissed.
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 27010/2018
(1)
REPORTABLE:
(2)
OF INTEREST TO OTHER JUDGES:
(3)
REVISED.
DATE:
05/06/2023
In
the matter between:
A[....]
K[....]1
S[....]1
Plaintiff
(ID
NO: 5[....]8)
obo
O[....]
K[....]2 S[....]2
(
ID
NO: 1[....]6) and
T[....]
S[....]3
(IDENTITY
NO: 1[....]4)
and
MINISTER
OF POLICE
Defendant
JUDGMENT
MBONGWE
J
:
INTRODUCTION
[1]
This is a damages claim for loss of support instituted by the
plaintiff on behalf of her two minor grand-children
following the
killing of their mother, L[....] S[....] (the deceased) on 15 October
2017. The deceased was wrong fully and unlawfully
shot with a firearm
by Constable Kgabo Vincent Rammutla, her live -in boyfriend who, at
the time, was in the employ of the South
African Police Service
(SAPS). Rammutla was working in the detective unit at the Eesterus
Police Station. The incident occurred
when Rammutla was off-duty, at
a residence rented, and shared by him and the deceased. The plaintiff
seeks to hold the defendant
vicariously liable for the wrongful
conduct of Rammutla.
[2]
The deceased was 29 years of age at the time of her
death and a mother of two minor children: - the younger was
six weeks
old at the time and born of the relationship between the deceased and
Rammutla. The deceased’s older child was
born of her earlier
relationship and was six years old when the incident occurred. The
deceased had been employed as a professional
nurse and had supported
her two minor children. Since her death the minor children are in the
care and custody of the plaintiff,
their grandmother, who is a
pensioner.
[3]
The plaintiff seeks to hold the defendant vicariously liable for the
wrongful and unlawful conduct of Rammutla
even though Rammutla was
off duty at the time of his commission of the murder.
PREMISE
OF THE PLAINTIFF’S CLAIM
[4]
In amplification of its contention that the defendant is vicariously
liable for the conduct of Rammutla, the
plaintiff alleges that;
4.1
Rammutla ought not to have been in possession of his official
firearm as he was officially off duty. The plaintiff
contends that by
permitting Rammutla to be in possession of the firearm whilst off
duty, the officials of the defendant had created
a risk and failed to
comply with the provisions of paragraph 6 of the South African Police
Service Standing Order 48.
4.2
Rammutla was not competent to be in possession of the official
firearm as he had not attended the compulsory
annual shooting
practice between 15 October 2016 and 15 October 2017 as required by
the Standing Order 48 and
Regulations
79
and
80
of
the
Firearms
Control Regulations. The
plaintiff’s
case is that in granting Rammutla access to the firearm in such
circumstance and particularly at a time
when he was off duty, the
defendant had created a risk which manifested itself with the
shooting and killing of the deceased;
4.3
By placing Rammutla in possession of the firearm in the two
circumstances described above, the defendant had
intended that
Rammutla continued to carry out his official duties, despite him
being off duty. Based on this contention the plaintiff
alleges that
the conduct of Rammutla falls within the definition of a deviation
case.
THE
DEFENCE
[5]
The defendant admitted that Rammutla was officially off duty when he
shot and killed the deceased using his
official firearm, but denied
that it had created a risk or failed to comply with the provisions of
para 6 of Standing Order 48
and Regulation 79 of the of
the
Firearms Control
Regulations.
[6
]
The defendant admitted that Rammutla had used his
official firearm to shoot and kill the deceased, but denied that

Rammutla had not been competent to be in possession of the firearm as
he had not attended the compulsory shooting practice between
15
October 2016 and 15 October 2017 and the defendant further denied
that, by permitting Rammutla to be in possession of the firearm
the
defendant was negligent and had created a risk.
[7]
The defendant further denied that it is liable for the
conduct of Rammutla on the particular facts and circumstances
of this
case.
[8]
The defendant alleged that Rammutla was competent to be
issued with and be in possession of the firearm for use
whilst
performing his official duties and not for his personal and private
use.
[9]
The defendant further alleged that Rammutla had not been
declared unfit and, therefore, incompetent to be in possession
of the
firearm and that, as a Detective in the SAPS, Rammutla was issued
with the official firearm.
[10]
The defendant denied that Rammutla was acting within the course and
scope of his employment when he shot and killed the deceased.
[11]
The defendant alleged that there is insufficient link between the
conduct of Rammutla in his commission of the murder
and his official
function as a police officer.
[12]
The defendant further alleged that there was an intimate relationship
between Rammutla and the deceased and that the incident
occurred in
the house in they both resided in, which rendered the commission of
the offence distant from Rammutla’s execution
of official
duties. There was, therefore, insufficient connection between
Rammutla’s commission of the offence in his residence
and his
mere employment did not render the defendant liable.
THE
LAW
VICARIOUS
LIABILITY
[13]
Vicarious liability is a common law principle in terms of which an
employer may be held liable for the wrongful conduct of
his employee
committed during the latter’s execution of his duties.
LEGAL
PRINCIPLES
[14]
The circumstances under which an employer may be held liable for the
wrongful conduct of his employee in terms of the common
lawn
principle of vicarious liability were defined in
Mkize
v Martens
1914
AD 382
para
319, in the following words:
“…
a
master is answerable for the torts of his servant committed in the
course of his employment, bearing in mind that an act done
by a
servant solely for his own interests and purpose, and outside his
authority, is not in the course of his employment, even
though it may
have been done during his employment.”
[15]
The law underpinning the application of the principle of vicarious
liability was developed further in the following matters;
Minister
of
Police v Rabie
1986
(1) SA 117
(A),
K
v Minister of Safety and Security
2005
(3) SA 179
(SCA),
F
v Minister of Safety and Security and Another
(CCT
30/11)
[2011]
ZACC 37
;
2012(1) SA 536 (CC); 2012 (3) BLC 244 (CC); (2012) 33 IL
J
93
(CC)
2013
(2) SACR 20
(CC
).
[16]
In the
Rabie
matter at 134C - E, the court set out
the two tests necessary in an inquiry to determine whether an
employer is vicarious liable
for the conduct of its employee. In this
regard the court said the following;
“
It
seems clear that an act done by a servant solely for his own interest
and purposes, although occasioned by his employment, may
fall outside
the course or scope of his employment, and that in deciding whether
an act of the servant does so fall, some reference
is to be made to
the servant’s intention. The test in this regard is 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.’’
[17]
In the matter of
K
at para 31, the court determined
that the connection or proximity of the employer’s mandate /
function to the actions of the
employee was a factor for
consideration in the determination whether the actions were taken by
the employee during his execution
of his mandate. In this regard the
court said the following:
“
The
legal principles underlying vicarious responsibility are well -
established. An employer, whether a Minister of State or otherwise,

will be vicariously liable for the delict of an employee if the
delict is committed by the employee in the course and scope of
his or
her employment. Difficulty frequently arises in the application of
the rule, particularly in so – called ‘deviation’

cases. But the test, commonly referred to as the ‘standard
test’, has been repeatedly applied by this Court. Where
there
is a deviation the inquiry, in short, is whether the deviation was of
such a degree that it can be said that in doing what
he or she did,
the employee was still exercising the function to which he or she was
appointed or was still carrying out some instruction
of his or her
employer. If the answer is yes, the employer will be liable no matter
how badly or dishonestly or negligently those
functions or
instructions were being exercised by the employee.’’
[18]
Prior to embarking on an analysis of the plaintiff’s
contentions and applying the above legal principles to the facts,
it
is necessary to traverse the relevant laws relied upon by the
plaintiff relating to the issuing and possession of firearms in
the
SAPS for purposes of determining the veracity of such contentions.
THE
LAW
[19]
The provisions of the law pertaining to the issuing and possession of
firearms are wide and are to be found in the Firearms
Control Act 60
of 2000 (the Act). While they are of general application, including
to the SAPS, other legal measures were put in
place under the Act to
specifically regulate the issuing and possession of firearms in the
South African Police Service. In light
of the basis of the issues in
this matter, this judgment will focus on both the provisions of the
Act and the ancillary measures
specifically relating to the issuing
and possession of firearms in the SAPS.
THE
FIREARMS CONTROL ACT 60 OF 2000 (‘The Act’)
[20]
The
Firearms
Control Act 60 0f
2000
was enacted to regulate the practical and procedural limitations on
obtaining and handling firearms. The Act also stipulates
certain
prohibitions and imposes requirements for eligibility to obtain and
possess a firearm. The provisions of section 2 of the
Act set out the
purpose of the Act, being to:
“
(a)
enhance the constitutional rights to life and bodily integrity;
(b)
prevent the proliferation of illegally possessed firearms and,
by providing for the removal of those firearms from society
and by
improving control over legally possessed firearms, to prevent crime
involving the use of firearms;
(c)
enable the State to remove illegally possessed firearms
from society, to control the supply, possession, safe storage,

transfer and use of firearms and to detect and punish the negligent
or criminal use of firearms;
(d)
establish a comprehensive and effective system of
firearm control and management; and
(e)
ensure the efficient monitoring and enforcement of
legislation pertaining to the control of firearms.’’
[21]
The provisions of section 3(1) of the Act impose general prohibitions
relating to firearms and muzzle loading firearms at state
thus:
“
(1)
No person may possess a firearm unless he or she holds for
that firearm-
(a)
A
licence, permit or authorisation issued in terms of this Act; or
(b)…..
(2)
No person may possess a muzzle loading firearm unless he
or she has been issued with the relevant competency certificate.’’
[22]
In terms of section 9(2) a person may only be issued with a
competency certificate if he or she;
“
(c)
is a fit and proper person to possess a firearm, to trade in
firearms, to manufacture firearms…
(l)
is not been convicted of an offence in terms of
the Domestic Violence Act, 1998 (Act No. 106 of 1998), and
sentenced
to a period of imprisonment without the option of a fine;
(m)
has not been convicted of an offence involving the negligent
handling of a firearm;
(p)
has not become or been declared unfit to possess a
firearm in terms of this Act or the previous Act;
(q)
has successfully completed the prescribed test on
knowledge of this Act;
(r)
has successfully completed the prescribed training
and practical test regarding the safe and efficient handling
of a
firearm;……
[23]
In terms of section 102 the registrar may declare a person unfit to
possess a firearm if, on the grounds of information contained
in a
statement under oath or affirmation, including a statement made by a
person called as a witness, it appears that:
“
(a)
a final protection order has been issued against such person
in terms of the Domestic Violence Act, 1998 (Act 116 of
1998)
(b)
that person has expressed the intention to kill or injure himself or
herself or any other person by means
of a firearm or any other
dangerous weapon;
(c)
because of that person’s mental condition, inclination to
violence or dependence on any substance which
has an intoxicating or
narcotic effect, the possession of a firearm by that person is not in
the interests of that person or any
other person;
(d)
that person has failed to take the prescribed steps for the
safe-keeping of any firearm; or
(e)
dies, or
(f)
that person has provided information required in
terms of this Act which is false or misleading.’’
THE
FIREARMS
CONTROL REGULATIONS 2004
[24]
Firearms Control Regulations were made under and are, therefore,
subject to the provisions of the
Firearms
Control Act. Sections
79(b)
and 80 of the Regulations provide for the prescribed training and
test in respect of the employees of the SAPS. The
Regulations state
that in order to sustain the competency of an employee of an Official
Institution to whom a firearm was issued
the head of the Official
Institution must –
“
(i)
ensure that he or she undergo at least one practical
training session at least every 12 months or within a shorter
period
as may be reasonably necessary in the circumstances, in the proper
and safe handling and use of the relevant firearm and
ammunition; and
(ii)
undergo psychological debriefing within 48 hours after
experiencing any violent incident, discharging their firearm
or
witnessing a shooting.’’
FIREARMS
AND AMMUNITION STANDING ORDER 48
[25]
Standing Order 48 provides for the training of police officers before
they may be issued with official firearms and regulates
the control
of firearms and ammunition. Paragraph 6 of Standing Order 48 reads
thus:
“
A
member is not entitled to be issued with an official firearm on his
or her personal inventory for use in his or her private
capacity
when
off duty.’’
[26]
In terms of para 8 of Standing Order 48 an official firearm may be
withdrawn by a station commander, unit commander or
section head from
the personal inventory of a member if the member:
“
(a)
no longer requires a firearm for the execution of his or her
duties;
(b)
is not competent to handle a firearm in terms of regulation 79 and of
the Regulations;
(c)
is suspended in terms of the Discipline Regulations;
(d)
dies
(e)
is absent from duty without leave; or
(f)
resigns from the Police.’’
APPLICATION
OF THE LEGAL PRINCIPLES TO THE FACTS
[27]
The principle in
Mkize v Martens
established the
liability of an employer for wrongful conduct of his employee. The
riders to the principle are of significance.
The employee must have
committed the tort in the course of executing his duties for the
employer to be held vicariously liable.
This principle was developed
further in
K v Minister of Safety and Security
where
the court laid down the two-leg inquiry to be employed to determine
vicarious liability of the employer; the first being the
subjective
test which relates to the employee’s state of mind when
committing the tort. The inquiry in this regard is whether
the
employee was executing his duties when committing the wrongful act.
In the present matter Rammutla was off duty and in his
residence when
committing the murder. He had resorted to engage in domestic
violence, an act of criminality to serve his own interests
and that
went against the vein of his employment. The first leg of the inquiry
thus exonerates the defendant from vicarious liability.
[28]
On the aspect of the law the question that begs for an answer is
whether the defendant had been negligent in letting
Rammutla be in
possession of the firearm while off duty and, therefore contravened
the provisions of para 6 of Standing Order 48,
as contended by the
plaintiff. The plaintiff’s argument in this respect is
formulated as follows;
“
..
when granting Rammutla a firearm even when he was off duty the
Minister of Police had intended to enable Rammutla to perform
the
employer’s functions and duties with that firearm whilst he was
off-duty. Otherwise, it would defy logic as to why the
employer would
grant Rammutla access to its resources in the first place, whilst
Rammutla was off-duty.
In
carrying his State issued firearm, Rammutla had been enabled by the
Defendant to continue to perform the function for which he
had been
appointed”
(paras
5.5 and 5.6 of the Plaintiff’s HOA).
ANALYSIS
[29]
The plaintiff’s contentions in para [28] emanate from the
plaintiff’s own misinterpretation of the provisions para
6 of
the Standing Order 48 it purportedly seeks to rely on. The plaintiff
has underlined self-selected words in that paragraph
as follows;
“
A
member is not entitled to be issued with an official
Firearm
on
his or her personal inventory
for
use in his or her
private
capacity
when
off duty.’’
Read
in context, the provisions of Para 6 of the Standing Order 48 forbid
a police officer issued with an official firearm from
entertaining
the thought that he is entitled to use the firearm for personal or
private matters whilst off duty. The provisions
do not prohibit an
officer issued with an official firearm from being in possession
thereof when he is off duty. Once an officer
had fulfilled the
requirements in para [22], above, and has been issued with the
so-called SAP Items 108, which include a firearm
and
ammunition,
inter alia
, he remains in possession thereof
whether on or off duty. It is only in the circumstances mentioned in
paras [23] and [26], above,
that the firearm may be withdrawn by any
of the officials mentioned in para 8 of Standing Order 48.
[30]
Furthermore, the plaintiff’s misinterpretation referred to
earlier above brought with it the plaintiff’s
unwarranted
reading of the defendant’s intention expressed in the latter
part of the plaintiff’s contentions quoted
in para [28], above.
The contention was disingenuously crafted to lay a foundation that
this was a deviation case. Rammutla’s
mere possession of the
firearm whilst off duty did not mean that he was intended to carrying
out any function of the defendant
whist off duty as suggested by the
plaintiff. His shooting of the deceased four times and killing her in
the presence of their
six weeks old baby, whom he left behind and was
later found lying in its dead mother’s pool of blood, was
plainly criminal
and for his own interest and purpose. To argue
otherwise was misplaced. A deviation case occurs when a police
officer commits a
tort while executing his lawful duties. The
plaintiff’s contention otherwise lacks merit and stands to be
rejected.
[31]
Police officers may be obliged to take action to prevent or intervene
to stop the commission of a crime even when off duty.
Where that
situation occurs, the officer would, in my view, be acting in line
with his appointment and the Minister may be held
liable for any
wrongful conduct the police officer may commit, just as he would if
the wrong was committed by the officer while
on duty. A wrong
committed by the officer in this instance will constitute a deviation
case and, therefore, render the Minister
liable. Each case should be
considered on its own merits in this regard. As a detective,
Rammutla’s duties related to the
investigation of crimes that
had already been committed. He was in his residence as he was off
duty and not to investigate a crime.
[32]
The plaintiff’s seeking to hold the defendant vicariously
liable merely on the basis of Rammutla’s employment and
despite
the fact that Rammutla was not executing his official duties, but
engaged in unlawful conduct when he shot and killed the
deceased, is
misplaced and against the legal principle in
Mkize v Martens,
above.
[33]
The plaintiff’s argument suggesting that an employee’s
wrongful conduct is attributable to the employer by virtue
of his
employment even where such conduct is not connected with the
employment is incorrect and ought to be rejected. There existed
no
link whatsoever between the criminal action of Rammutla and his
employment. The defendant cannot be held liable in the circumstances

of this case (see
Mkize v Martens
).
PLAINTIFF’S
‘EXPERT’ EVIDENCE
[34]
The plaintiff called and led the evidence of one witness on the
aspect of causation and basis for seeking to hold the defendant

vicariously liable, namely, Mr Mpho Boshielo, a retired former
Colonel in the employ of the defendant who currently serves as a

Commissioner of the CCMA in Tshwane and whom the plaintiff described
as its expert witness. The plaintiff has filed a notice in
terms of
Rule 36(9) relating to the evidence of this witness.
[35]
The witness testified that he was the trainer of aspirant police
officers during the period 1991 to 2004. He did not know nor
did he
train Rammutla. He was no longer directly involved with trainees at
the time Rammutla was a trainee, but had been involved
in the
supervision of trainers. During his time as a trainer, he had taught
the theoretical aspects of the training of officers
such the law
relating to the handling of firearms. He had scant to no knowledge of
the practical aspects of the training such as
the frequency of
practice shooting and competency assessments in shooting and the
general handling of issued firearms nor the sustenance
of competence
and matters of disqualifications and withdrawal of possession of
firearms and the remedial training involved. These
were crucial
aspects of the plaintiff’s case. Thus the plaintiff had
effectively presented no evidence to support its contentions
on the
law it seeks to rely on to hold the defendant vicariously liable for
the conduct of Rammutla.
[36]
The witness did confirm, however, that police officers issued with
firearms and ammunition, inter alia, are entitled by law
to remain in
possession thereof even when off duty. This evidence contradicted the
plaintiff’s contention and basis for reliance
on the provisions
of para 6 of Standing Order 4.
[37]
It transpired during the cross examination of the plaintiff’s
second witness that the contentions raised by the plaintiff
emanated
from documents the plaintiff’s attorneys allegedly obtained
from IPID, the body that is still investigating the
case against
Rammutla. The witness testified that he was supplied by the
plaintiff’s attorney with those documents for him
to study in
preparation for this case. It came as no surprise to that the
defendant’s counsel objected to the admission of
the evidence
of the plaintiff’s second witness that was based on documents
from incomplete or ongoing investigations.
EVIDENCE
OF DEFENCE WITNESSES
[38]
The defendant called four witnesses,
inter
alia
,
Lft Colonel Msiza who has been in the SAPS for 34 years and is
currently in the Tshwane Police Training Academy. His duties include

the monitoring and evaluation of what he called street survival
firearms. He also evaluates the performance of police trainers.
He
became a trainer of officers in 2002 and was involved in both
theoretical and practical training of aspirant police officers.
He
testified mainly on what the training entails, the provisions of
the
Firearms
Control Act, Firearms
Control
Regulations and the Standing Order 48. He confirmed the evidence of
Captain Neveling that the frequency of firearm
shooting practice and
competency t        esting of
firearm shooting and handling was amended
in September 2016 from once
in twelve months to once in five years. He further testified that the
change was effected through the
publication of the National
Instructions of 2016. This aspect of the evidence was later confirmed
by another defence witness, Brigadier
P.W. Nienaber, who was directly
involved in the drafting of the National Instructions of 2016 and saw
to its publication on 29
September 2016 – the date the
instructions became operational
.
[39]
The second defence witness was Captain Neveling who testified that he
has been in the police service for 29 years and is responsible
for
the monitoring and recording of the officers’ attendance of
shooting practices and, importantly, the compulsory annual
competency
assessments of firearm shooting and handling. He testified on the
circumstances an officer may be disqualified and dislodged
of his
possession of a firearm such as the commission of a violent offence,
a failure to attend the competency assessment practice
despite a
directive to do so which comes after an officer had failed to present
himself when due for assessment and the circumstances
stated in para
[26], above.
[40]
He testified that Rammutla was stationed within the area the witness
was in charge of and that he had known him, but had not
had direct
dealings with him. The witness was and continues to be in charge of
the supply chain that issues firearms,
inter alia
, to
qualified officers. He was involved when Rammutla was issued with an
official firearm. By virtue of his position, he has access
to the
records of officers within his area, including those of Rammutla. He
agreed that Rammutla had not attended the compulsory
annual
competency assessment practical firearm shooting and handling session
between 15 October 2016 and 15 October 2017. He further
stated that
such failure
per se
did not render the officer
concerned incompetent to possess and handle a firearm and that even
the withdrawal of the firearm
in such instance is discretionary to
the Station Commander. He testified that Rammutla had not been
declared incompetent to be
in possession of his official firearm nor
had he committed any of the prohibited acts that warranted the
withdrawal of his firearm.
To his knowledge there was nothing
untoward in Rammutla being in possession of the firearm even when he
was off duty.
[41]
Of particular interest and part of the issues in this case was the
evidence of this witness relating to the plaintiff’s

contentions with regard to Rammutla’s alleged incompetence to
possess the firearm for his failure to attend the practical
shooting
practice between 15 October 2016 and 15 October 2017. The witness’
undisputed evidence drew the distinction between
the attendances of
the ordinary practice shooting session and the compulsory annual
practical firearm shooting and handling competency
assessment
session. The witness testified that the Plaintiff’s contention
that Rammutla was incompetent to be in possession
of a firearm at the
time of his commission of the murder on the ground that he had ‘’
not
attended the
compulsory annual shooting practice between
15 October 2016 and 15 October 2017’’
was
incorrect. This aspect is dealt with specifically hereunder.
[42]
Counsel for the plaintiff appeared to make no distinction between the
attendance of practice shooting and that of the compulsory
annual
practical firearm shooting and handling competency assessment. He
referred to both as being compulsory annual training sessions
the
failure whereof resulted in incompetence. He even appeared to refer
to the two sessions interchangeably.
[43]
According to the witness a shooting practice is not compulsory, but
members to attend at least one session in a year prior
to 29
September 2016. Members of the SAPS could and may still attend
practice shooting at anytime and as many times they wished,
depending
on availability of space. The attendance of practice shooting is not
recorded and a failure to attend does not render
the member concerned
incompetent.
[44]
The attendance of the
then
annual assessment of
competency to shoot and handle a firearm was and is still compulsory,
save that the period of compulsory
attendance has since 29 September
2016 been extended to once in five years by the National Instruction
of September 2016. The evidence
of this witness was confirmed by
Brigadier Nienaber who was involved in the development and drafting
of the National Instruction
of 2016 and also saw to its publication
on 29 September 2016 – the date on which it became operational.
Brigadier Nienaber
further testified that the National Instruction of
2016 did not repeal or replace Standing Order 48, save that where
there was
conflict between the two, the National Instruction of 2016
would prevailed. A copy of the National Instruction of 2016 was
handed
in as an exhibit as well as the proof of its publication
thereof on 29 September 2016. The plaintiff’s contention based
on
the provisions of Standing Order 48 was consequently misinformed
and stands to be rejected.
ANALYSIS
OF THE EVIDENCE OF DEFENCE WITNESSES
[45]
Rammutla commenced training in 2010 which he successfully completed
in 2012 when he was issued with the letter of competency
to be issued
with a firearm in March 2012. He complied with the requirements
stated in para 22 and was consequently issued with
the firearm,
inter
alia
. He had not been declared incompetent to possess the firearm
or been subject to the circumstances stated in paras [26] and [26]
or
committed any of the acts stated in para 8 of Standing Order 48. He
was, therefore, by law entitled to be in possession of the
official
firearm issued to him.
[46]
The plaintiff has not adduced any evidence to support any of its
contentions and ultimately prove its case that Rammutla had
not been
competent to possess the firearm. His alleged failure to attend the
firearm shooting practice between 17 October 2016
and 17 October 2017
does not establish that he had not done so for a period of five years
as required in the National Instruction
of 2016. In any event even if
he had not done so in five years, the failure would not have resulted
in his incompetence according
to the undisputed evidence of Captain
Neveling. Even a failure to attend the compulsory firearm shooting
and handling assessment
practice would not have affected his
competency. The withdrawal of his firearm would have been
discretionary to the Station Commander.
This evidence is validated by
the words used in para 8 of Standing Order 48 - ‘’…
firearm
may
be
withdrawn by the Station Commander...’’
(own
emphasis). The Station Commander did not withdraw the firearm from
Rammutla.
[47]
The evidence of Mr Khobo, the former overall Commander of the
Detective Unit Rammutla was a member of, was that Rammutla joined
the
unit in March 2012. He testified that Rammutla was involved in the
investigation of cases that were regarded as important and
had been
issued with an official firearm as he was qualified to be issued with
one. The witness testified that an officer was allowed
to remain in
possession of the firearm issued to him until they resigned or were
no longer competent or involved in domestic violence
or substance
abuse. He had not known Rammutla to be violent until the day he
learned that Rammutla had shot and killed the deceased.
The witness
confirmed that Captain Neveling was in charge of matters relating the
issuing of firearms, shooting practice and the
recording of
attendance of competence assessment shooting sessions.
[48]
The evidence of defence witnesses disproved the allegations and
contentions of the plaintiff that Rammutla had been incompetent
to be
in possession of the firearm he used to kill the deceased and that
the defendant was negligent in allowing him to be in possession
of
the firearm when he shot and killed the deceased.
CONCLUSION
[49]
The undisputed evidence of the second defence witness, Captain
Neveling, that Rammutla was never declared incompetent nor had

committed an act that would have warranted that he be dislodged of
possession of his official firearm disproved the plaintiff’s

allegations of Rammutla’s incompetence and of the defendant’s
negligence in not withdrawing the firearm from Rammutla.
These
aspects were important in this case and the evidence of Neveling in
respect thereof was corroborated by that of the commander
of the
Detective Unit of which Rammutla was a member, Mr Khobo,
[50]
The exact date of the commencement of the National Instructions of
2016 became an issue that became settled in particular in
the
undisputed evidence of Brigadier Nienaber, who testified that the
period of twelve months relating to practice shooting referred
to in
Standing Order 48 and relied upon by the plaintiff had already been
extended to five years by the National Instructions of
2016. This
evidence disposed of the plaintiff’s contention that Rammutla
had been incompetent to be in possession of an official
firearm for
his failure to attend the shooting practice between 15 October 2016
and 15 October 2017; the last being the date Rammutla
shot and
murdered the deceased.
[51]
The plaintiff has not succeeded in demonstrating that Rammutla had
been incompetent to possess a firearm nor that the defendant
was
negligent in allowing him to remain in possession of the firearm.
Furthermore, the plaintiff failed to establish that the facts
in this
case meet the requirements to hold the defendant vicariously liable
for the unlawful conduct of Rammutla. In consequence,
the plaintiff’s
case stands to be dismissed purely on the merits.
COSTS
[52]
The plaintiff engaged in these proceedings in pursuance of the rights
of the minor children of their mother, the deceased,
who was
unlawfully murdered by Rammutla. In line with the
Baywatch
principle
, it would be unjust to mulct the plaintiff with costs
on the facts and circumstances of this case.
ORDER
[53]
Flowing from the findings in this judgment, the following order is
made:
1.
The plaintiff’s claim is dismissed.
2.
There is no order as to costs.
MPN
MBONGWE
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
APPEARANCES
Counsel
for the Plaintiff:                                Mr

Maoba, Attorney
with
Adv Nosipho Khumalo
Attorneys
for plaintiff:                                     Maoba

Attorneys Inc
PRETORIA
Email:
Info@maobalaw.co.za
Tel:
012 386 8957
Counsel
for the Defendant                             Adv

M S Phaswane
Attorney
for the Defendant                             Office

of the State Attorney,
PRETORIA
Email:
Msphaswane@law.co.za
/
Tshif650i@gmail.com
THIS
JUDGMENT WAS ELECTRONICALLY TRANSMITTED TO THE PARTIES ON 05 JUNE
2023.