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[2012] ZASCA 158
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Minister of Defence v Von Benecke (155/12) [2012] ZASCA 158; (2013) 34 ILJ 275 (SCA); 2013 (2) SA 361 (SCA) (15 November 2012)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 115/12
In the matter between:
THE MINISTER OF
DEFENCE
.....................................................................
APPELLANT
and
LEON MARIUS VON
BENECKE
...............................................................
RESPONDENT
Neutral citation
:
Minister of Defence v Von Benecke
(115/12)
[2012] ZASCA 158
(15 November 2012)
Coram:
HEHER,
MALAN, THERON, WALLIS JJA AND SALDULKER AJA
Heard:
2 November
2012
Delivered:
15
November 2012
Updated:
Summary:
Employment
law – vicarious liability – South African Defence Force –
theft of armaments by employee employed to
care for them –
policy considerations – closeness of connection between conduct
of employee and the duties of his employment
– employer liable.
___________________________________________________________________________________
ORDER
On appeal from:
North Gauteng High Court (Pretoria)
(Tuchten J sitting as court of first instance):
‘
The
appeal is dismissed with costs including the costs of two counsel.’
__________
_______________________________________________________________________
JUDGMENT
_____________________________________________________________________
HEHER JA (MALAN, THERON,
WALLIS JJA AND SALDULKER AJA concurring):
[1] This is an appeal
with leave of the trial court (Tuchten J) against a finding that the
appellant (the Minister) is liable to
pay damages to the plaintiff
arising from an armed robbery that took place on 7 March 2003 at
Three Birches on the road between
Groblersdal and Bronkhorstspruit.
[2] By agreement the
issues of quantum and liability were separated under rule 33(4). The
trial proceeded on the latter issue on
the basis of a stated case. As
will be seen the real dispute between the parties was whether the
agreed facts justified the court
in holding the Minister vicariously
liable for the acts and omissions of its employee, Jacob Motaung. The
learned judge concluded
that they established ‘a sufficient
connection between the conduct of Motaung and the purposes and
business of the defendant’
to render the Minister liable. It is
that conclusion which will be revisited in this appeal.
The agreed facts
[3] The Minister was
cited as defendant in his official capacity as head of the Department
of Defence.
[4] During the robbery to
which I have referred in the first paragraph of this judgment one
Mahlangu shot the plaintiff, a 42 year
old man, several times with an
R4 assault rifle consisting of the elements which are referred to in
the succeeding paragraphs.
[5] The body of that
rifle had been stolen from the TEK Base of the South African Defence
Force at Pretoria before January 2002,
by unknown employees of the
defendant, or, due to the unlawful and negligent actions of unknown
employees of the Force, the rifle
was provided or sold to Mahlangu.
[6] Between
January 2002 and March 2003 the aforesaid Motaung stole various R4
rifle parts, ammunition and magazines from the 4
th
South African Infantry Military Base at Middelburg where
he was employed and responsible, inter alia, for the safekeeping and
storage
of various dangerous infantry weapons including those parts,
ammunition and magazines. Motaung provided the stolen items to
Mahlangu
and they were used by him to render the aforementioned rifle
operable.
[7] Motaung knew or ought
to have known that Mahlangu planned to use and did use the stolen
rifle, parts, ammunition and magazines
to commit armed robberies.
[8] As a direct result of
the actions of Mahlangu in the robbery the plaintiff suffered
injuries and harm and will in future suffer
damages.
[9] Mahlangu was later
shot dead by the police and his co-robbers were arrested and
convicted of the murder of the plaintiff’s
partner and the
armed robbery. The R4 rifle was recovered.
The legal
questions put to the trial court
[10] The trial court was
asked to decide whether:
(a) the actions of
Motaung or other employees of the defendant constituted dolus or
culpa;
(b) the defendant could
be held vicariously liable for the actions of Motaung or the other
unknown employees of the defendant;
(c) the injuries and
damage suffered by the plaintiff were causally related to the actions
of Motaung or the said employees;
(d) the harm caused to
the plaintiff was too remote to have been foreseen by Motaung or the
said employees;
(e) there was a legal
nexus between the conduct of Motaung or the said employees and the
harm caused to the plaintiff.
[11] The learned judge
expressly decided the second of the questions posed in favour of the
plaintiff. He said nothing concerning
the remaining questions
although similar positive conclusions must be implied from his order
that the defendant is liable for such
damages as the plaintiff can
prove in the second stage of the trial. In the view I take of the
matter it is only necessary to rule
on the issue of vicarious
liability although I shall also refer briefly to the question of
causation. No submissions were made
to us concerning the other
questions.
Vicarious liability
[12] I accept, as did the
trial judge, that the stated case was intended to mean that Motaung,
while engaged in his employment with
defendant which required him to
safeguard the weapons under his care, stole the parts, ammunition and
magazines that were later
used by Mahlangu in combination with the
body of the rifle.
[13] That being so, it
seems to me that the (pre-constitutional) standard test for vicarious
liability – designed to achieve
a balance between imputing
liability without fault, which runs contrary to legal principle, and
the need to make amends to an injured
person, who might not otherwise
be compensated:
Minister of Law and Order v Ngobo
[1992] ZASCA 172
;
1992 (4) SA
822
(A) at 833G-H;
K v Minister of Safety and Security
[2005] ZACC 8
;
2005
(6) SA 419
(CC) para 21 – might not have provided a remedy in
this case. Viewed from the subjective perspective of the employee
Motaung
he deliberately turned his back on his employment and its
duties, pursuing instead his own interest and profit in stealing the
components and ammunition for the rifle. Objectively considered, the
theft and removal formed no part of his duties and there was
no link
between his own interests (as realised by the theft) and the business
of his employer. In the standard terminology the
conduct fell outside
both the course and the scope of his employment; nor does the fact
that Motaung was employed to safeguard
the armoury provide the
necessary connection – the submission of counsel being that the
theft can be equated with a culpable
neglect of his duties while in
the course of carrying them out. There is in my view a clear
distinction between a negligent performance
of a task entrusted to an
employee, for which the employer must usually bear responsibility,
and conduct which is in itself a negation
of or disassociation from
the employee / employer relationship. The theft committed by Motaung
falls into the second category.
I can find no reason to distinguish
it from the facts and principles summarised by Harms JA in
Absa
Bank Ltd v Bond Equipment (Pretoria) (Pty) Ltd
[2000] ZASCA 136
;
2001 (1) SA 372
(SCA) at 382I-383C.
[14]
But, as
O’Regan J made clear in
K v Minister of
Safety and Security
paras 16 and 23 that
cannot be the end of the matter in a deviation case, as this is: a
court that finds that the standard test
is not met is nevertheless
bound to ask itself whether the rule does not require development and
extension to accommodate the particular
set of facts before it. In
answering the question the normative values of the constitution
direct the policy that must influence
the decision and they do so in
relation to the objective element of the test, ie the closeness in
relationship between the conduct
of the employee and the business of
the employer: ibid para 44. It is no longer necessary, if the
constitutional norms so dictate,
to limit the proximity to those
cases where the employee, although deviating from the course or scope
of employment, is nevertheless
acting in furtherance of the
employer’s business when the deviation occurs.
[15] In
F
v Minister of Safety and Security and Others
2012
(1) SA 536
(CC) Mogoeng J (as he then was), after referring to the
close connection test formulated in para 53 of
K’s
case, continued (para 76):
‘
The
establishment of this connection must be assessed by explicit
recognition of the normative factors that point to vicarious
liability including the constitutional mandate of the State, to
establish a credible and efficient police service on which the public
ought to be able to rely for protection from, and prevention of,
crime. That should be a police service worthy of the trust of
the
public and one to which vulnerable members of the public ought to
turn readily for protection in times of need.’
[16] The
constitutional foundations of the defence force are similar to those
of the police force although the duties and responsibilities
of the
force and its employees inter se and in relation to the public are
not directly comparable. Nevertheless the emphasis on
constitutional
norms and the appropriate relations with the citizenry of this
country are matters common to the security services
in question. In
particular the introductory paragraphs applied to the State’s
constitutional obligations in para 53 of
F’s
case are of equal weight in relation to the defence
force, viz that
‘
The
State has a general duty to protect members of the public from
violations of their constitutional rights.’
The
constitutional foundations of the defence force and their statutory
embodiment.
[17] Both forces are
constitutionally acknowledged in Chapter 11 of the constitution and
their separate recognition is preceded
by common ‘governing
principles’ (s 198) the first of which is that
‘
(a)
national security must reflect the resolve of South Africans, as
individuals and as a nation, to live as equals, to live in
peace and
harmony, to be free from fear and want and to seek a better life.’
Section 199 provides for
the establishment, structuring and conduct of the security services.
It is a specific requirement that
‘
(5)
The security services must act, and must teach and require their
members to act, in accordance with the Constitution and the
law. . .
.’
[18] Turning to the
specific case of the defence force, s 200 of the constitution
provides:
‘
(1)
The defence force must be structured and managed as a disciplined
military force.
(2)
The primary object of the defence force is to defend and protect the
Republic, its territorial integrity and its people in accordance
with
the Constitution and the principles of international law regulating
the use of force.’
[19] The defence force is
structured and regulated by national legislation (as envisaged in s
199(4) of the constitution), the principal
vehicle for this being the
Defence Act 42 of 2002
.
[20] The Act commences
(in s 2) with a statement of principles to which all members of the
defence force and its employees are required
to have regard when
exercising any power or performing any duty in terms of it. These
principles include the following:
‘
(b)
The primary object of the Defence Force is to defend and protect the
Republic, its people and its territorial integrity.’
and
‘
(g)
The Defence Force must respect the fundamental rights and dignity of
its members and of all persons.’
[21] Section 50(1) of the
Act provides that the rights of members or employees of the Force may
be restricted in the manner and
to the extent set out in ss (2) to
(7) of that section. Particularly relevant to the duty to ensure that
the armed resources at
its disposal are properly secured, preserved
and controlled is the following:
‘
(2)
To the extent necessary for purposes of military security . . .
members and employees may from time to time be subjected to
–
(a) searches
and inspections;
(b) screening
of their communications with people in or outside the Department;
(c) security
clearances which probe into their private lives; . . .’
[22] In terms of s 82(1)
of the Act
‘
The
Minister may, by notice in the Gazette, make regulations regarding –
.
. . (z) the issue, care and disposal of arms, accoutrements,
ammunition . . . and equipment of the Department’.
Our attention has not
been directed to the content of such regulations (if any have been
made) nor have I been able to locate them.
[23] The Military
Discipline Code, established under s 104 of the Defence Act 44 of
1957, and still in operation, renders theft
of property belonging to
the defence force a criminal offence rendering the offender liable
for imprisonment up to ten years (s
20(a)).
[24] The defence force is
in this statutory context, a special kind of employer with a
relationship towards its employees and the
public which requires an
approach to liability for the wrongful acts of those employees which
is very different from that of an
ordinary civilian employer. Its
proper functioning requires it to possess quantities of dangerous
weapons which cannot be permitted
to escape into the hands of the
public and, especially, the criminal element of the population, and
it has the resources to prevent
that happening and the powers
necessary to do so. It has the duty to educate its employees in the
disciplines required to minimise
that risk. It goes without saying
that because of the enormous potential for public harm inherent in
the inadequate preservation
and control of arms the Department
(through its responsible Minister) should not in general be able to
avoid liability for wrongful
acts of commission or omission of
employees that it has appointed to carry out its duties to preserve
and control its arms, save
in cases where the court finds that those
acts are not sufficiently closely connected with the employee’s
duties to warrant
the imposition of liability on the Department.
[25]
It appears that there was, on the facts of the stated case, an
intimate connection between Motaung’s delict and his
employment. First, he abstracted the equipment and ammunition while
under a positive duty to preserve and care for the items in
question;
second, it is the most probable inference that the opportunity to
make away with them arose from the opportunity provided
by the scope
of his duties without which he would have possessed neither access to
them nor knowledge of the means to avoid such
security controls as
the defence force must have put in place.
1
[26]
That the risk should fairly fall on its creator when the public is
exposed to weaknesses in its systems or frailties in its
personnel is
merely a reciprocal to the powers that the defence force exercises:
cf
Feldman (Pty) Ltd v Mall
1945 AD 733
at 741; and the
duties that it bears to the public. It should however be made clear
that I have reached this conclusion in the
limited perspective of the
agreed facts. If the Minister were, for example, to have satisfied me
that the defence force had taken
all reasonable steps to prevent the
theft of weapons by its responsible employees, appropriate to its
constitutional responsibilities,
I might have been persuaded that
such was not a proper case for the extension of the remedy despite
the closeness of the connection.
[27] For the foregoing
reasons the conclusion of the court a quo cannot be faulted.
[28] Counsel for the
Minister attempted to persuade us that no causal link was established
by the agreed facts between the delict
of Motaung and the attack on
the respondent by the robbers. This is an untenable proposition.
There is a direct and foreseeable
connection. Motaung stole the parts
and ammunition and provided them to Mahlangu with foresight that they
could or would be used
as they were indeed used thereafter. His
conduct was ‘linked to the harm sufficiently closely or
directly for legal
liability
to ensue’:
Minister of
Police v Skosana
1977 (1)
SA 31
(A) at 34G.
[29] The appeal is
dismissed with costs including the costs of two counsel.
_________________
J A HEHER
JUDGE OF APPEAL
APPEARANCES
APPELLANT: S M Lebala SC
(with him M D Mohlamonyane)
The State Attorney,
Pretoria
The State Attorney,
Bloemfontein
RESPONDENT: P J J de
Jager SC (with him R Strydom)
D P du Plessis Inc,
Centurion
Lovius Block Attorneys,
Bloemfontein
1
In
this regard, the development of the law under the constitutional
dispensation is shown by comparison with
Nel
& Another v Minister of Defence
1979
(2) SA 249
(R) at 248F-249C, where, in circumstances not dissimilar
to those now under consideration, neither factor was regarded by
Goldin
J as relevant to a determination of the Minister’s
liability for thefts committed by his servants.