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[2022] ZAECMKHC 64
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L.R.M and Others v Mnquma Local Municipality and Another (453/2020) [2022] ZAECMKHC 64 (20 September 2022)
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IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE DIVISION
– MAKHANDA)
CASE NO.: 453/2020
Matter heard on: 22
August 2022
Judgement delivered
on: 20 September 2022
REPORTABLE: YES
OF INTEREST TO OTHER
JUDGES: YES
REVISED
In the matter between: -
L[....] R[....]
M[....]
1
ST
PLAINTIFF
D[....] J[....]
M[....]
2
ND
PLAINTIFF
M[....]2
M[....]
3
RD
PLAINTIFF
and
THE MNQUMA LOCAL
MUNICIPALITY
1
ST
DEFENDANT
LUKHANYO
TUKANI
2
ND
DEFENDANT
JUDGMENT
SMITH
J:
Introduction
[1]
The heartrending facts of this case evoke harrowing images from any
parent’s
worst nightmare. At about 20h30 on Saturday, 2
December 2017, five-year-old N[....] M[....] was struck by a bullet
while lying
in bed, cradled in his mother’s arms. It is common
cause that the shot was fired from a neighbouring property, by Mr
Lukhanyo
Tukani (the second Defendant). N[....] suffered severe brain
injury resulting in, amongst others, speech impediments and
paralysis.
It is also common cause that Mr Tukani was at all material
times employed by the Mnquma Local Municipality (the first defendant)
as a Close Protection Officer.
[2]
N[....]’s father, Mr L[....] R[....] M[....] (the first
plaintiff), his mother
D[....] J[....] and elder sibling, M[....]2
(the second and third plaintiffs, respectively), instituted civil
action against the
municipality and Mr Tukani for damages arising
from N[....]’s injuries. Mr M[....] sues in both his personal
and representative
capacities as N[....]’s father and natural
guardian.
[3]
Mrs M[....]’s and M[....]2’s claims are based on the
assertion that they
suffered severe emotional shock and trauma as a
result of the shooting incident and the injuries sustained by
N[....]. The quantification
of those damages are, however, a matter
for another day since I have, on application by the parties, made an
order separating the
issues of liability and quantum.
The
pleadings
[4]
The plaintiffs’ claims are founded on the following pleaded
averments:
(a)
at all material times Mr Tukani was acting
within the course and scope of his employment with the municipality
as a security officer;
(b)
Mr Tukani had wrongfully and unlawfully
fired a shot or shots, one of which struck N[....] where he was at
home, in bed, at [....]
R[....] Hills, Butterworth, Gcuwa;
(c)
the municipality failed to ensure that the
firearm furnished to Mr Tukani was retained and secured with it when
Mr Tukani retired
from work for the day; and
(d)
the municipality failed to ensure that Mr
Tukani was trained and experienced with the use and security
requirements of a firearm.
[5]
In its plea, the municipality has denied that Mr Tukani was acting
within the course
and scope of his employment. It averred that Mr
Tukani was employed as a ‘Close Protection Officer’ and
“expressly
and specifically assigned’ to the protection
of its executive mayor. The firearm was issued to him for that
purpose only.
While admitting that Mr Tukani fired the shot that
struck and injured N[....], the municipality averred that at the
relevant time
his actions were unrelated to his employment. It
furthermore denied that it had a legal obligation to ensure that Mr
Tukani returned
his firearm when he was off duty.
The
evidence
[6]
Mr and Mrs M[....] described the events of that fateful night as
follows. At about
20h30 that evening, Mr M[....] was busy in the
kitchen preparing Sunday lunch when he was joined by N[....]. After
enjoying his
favourite treat, namely a muffin and custard, N[....]
joined his mother in the bedroom. A few minutes later all hell broke
loose.
Mr M[....] heard several gunshots – he thought about
four – in quick succession. His first concern was for his
family
and he shouted for them to join him in the passage. His wife
came out of the bedroom clutching N[....] in her arms. He could
immediately
see that N[....] was bleeding profusely. They then laid
N[....] in the passage and screamed for help. They were eventually
assisted
by neighbours, who took N[....] and Mrs M[....] to the
hospital.
[7]
Their residence is a pre-fabricated structure with hollow walls. The
bullet penetrated
just beneath their bedroom window, about a meter
above the floor. Mr M[....] subsequently also noticed two other
bullet holes in
the roof sheeting. He did not hear any screaming or
commotion outside before the shooting.
[8]
Mrs M[....] said that after N[....] had joined her in the bedroom, he
said his usual
night-time prayer and the two of them recited the Our
Father together. Seconds later she heard gunshots. It sounded to her
as if
something had struck the window. She heard her husband
screaming from the kitchen and she immediately picked N[....] up and
moved
into the passage. It was only then that she noticed that
N[....] was bleeding. She herself was also bleeding from a
superficial
wound on her cheek. She had also subsequently noticed the
two holes in the roof sheeting.
[9]
Mr Tukani was the municipality’s only witness. At all material
times he was
employed by the latter as a Close Protection Officer
and, according to him, his only function was to protect the mayor. He
was
an experienced security guard and had previously been employed in
the security industry from 2007 to February 2016, whereafter he
joined the municipality.
[10]
He said that he was proficient in the safe handling and use of
firearms. He completed a course
prescribed in terms of the Firearm
Control Act, 60 of 2000 (the Act), relating to the safe handling and
use of a handgun for business
purposes. He was also issued with a
competency certificate by the South African Police in terms of
Section 10 of the Act. The latter
certificate evinces that he had
successfully completed the prescribed training and practical tests on
the safe and efficient handling
of a firearm. He was also duly
registered with the Private Security Industry Regulatory Authority,
and has completed its advanced
training courses in several grades,
during 2007.
[11]
He said that he was employed by the municipality as its executive
mayor’s body guard. The
municipality issued him with a 9mm
pistol for this purpose. Because he was on standby at all times and
could be called out at any
time to accompany the mayor to functions
or meetings, he was allowed to retain the firearm even when he was
off duty,
[12]
On 2
December 2017, between 10 and 11pm, he was asleep at
his home when he was woken up by his girlfriend. She told him that
someone
was calling out his name outside. He then also heard his
friend Melikhaya calling him and imploring his help. When he opened
his
front door, he saw that Melikhaya had been pushed against an Aloe
bush next to his fence by an unknown assailant. The assailant
was
holding onto Melikhaya with his left hand and was clutching a knife
in the other. He noticed blood on Melikhaya’s left
shoulder.
[13]
He shouted at the assailant to release Melikhaya but he instead moved
closer to the gate, still
holding onto Melikhaya and wielding the
knife in a threatening manner. The assailant then boldly moved
towards the gate and tried
to open it. At that stage he was about 7
paces away.
[14]
Mr Tukani then ran into the house and fetched his firearm. When he
returned outside, he saw that
the assailant was still holding onto
Melikhaya, but was now moving away from the gate. He then fired a
warning shot into the air.
[15]
After he had fired another warning shot, the assailant released
Melikhaya and started moving
farther in the direction of the gate. Mr
Tukani then fired a third shot into the ground next to the
assailant’s left leg,
causing him to flee. He said that he had
fired the shot at an angle into the tarred road and had seen sparks
fly from where the
bullet had struck the tar. He therefore assumed
that the bullet must have ricocheted and penetrated the M[....]’s
residence.
[16]
While attending to Melikhaya, he heard people screaming that a child
in the M[....]’s residence
had been struck by a bullet. He
immediately ran to the M[....]’s residence where he assisted
them to attend to the child.
He then asked a neighbour to take the
child to hospital. He returned to his house to get dressed and later
went to the hospital
to find out how the child was doing.
[17]
During cross-examination, Mr
Louw
, who appeared for the
plaintiffs, put to Mr Tukani that the job description in his
personnel file contains a far more extensive
description of his
duties than merely the protection of the mayor. Mr Tukani insisted
that his only duty was to guard the mayor
and that he was unaware of
the contents of the Job Description Form.
Vicarious
liability
[18]
The first issue that arises from the pleadings is whether Mr Tukani
acted in the course and scope
of his employment when he fired the
shot that injured young N[....]. If I find that this basis for
vicarious liability has not
been established, then the question
arises as to whether the shot was fired in circumstances sufficiently
close to the municipality’s
business in order to found
vicarious liability.
[19]
It is established law that an employer is vicariously liable for
delicts committed by its employee
where the employee is acting within
the course and scope of his or her duties as an employee. O’Regan
J, in
K
v Minister of Safety and Security
[1]
,
explained that the rationale for this legal principle [‘i]s to
be found in a range of underlying principles. An important
one is the
desirability of affording claimants’ efficacious remedies for
harm suffered. Another is the need to use legal
remedies to incite
employers to take positive steps to prevent employees from harming
members of the broader community’.
The learned judge, however,
cautioned that ‘damages should not be borne by employers in all
circumstances, but only in those
circumstances in which it is fair to
require them to do so’.
[20]
The Constitutional Court also held that it is wrong to characterise
the application of the common
law principles of vicarious liability
as ‘a matter of fact untrammelled by any considerations of law
or normative principles’.
These are principles which are
‘imbued with social policy and normative consent’
[2]
.
[21]
What then is the case where an employee acts outside his or her scope
of employment and the delict
is committed in the course of a
deviation from his or her normal duties?
[22]
In
Minister
of Police v Rabie
[3]
,
Jansen JA explained the applicable legal principle as follows:
‘
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 references
is to be made to the servant’s intention (
cf
Estate Van de Bail v Swanepoel
1927 AD 141
at 150). 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.’
[23]
As O’Regan J explained in
K
v Minister of Safety and Security
[4]
,
this question must be answered by proper consideration of facts 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.
[24]
In
Stallion
Security (Pty) Ltd v Van Staden
[5]
,
the Supreme Court of Appeal held that ‘[A] convenient starting
point is the principle that this link would not be established
when
the business of the employer furnished the mere opportunity to the
employee to commit the wrong’. The enquiry must also
not be
reduced to the mere ‘but for’ causation analyses. The
court held further that the creation of risk is not sufficient,
of
itself, to give rise to vicarious liability, but it is always likely
to be an important element in the consideration of the
facts that
gave rise to such liability.
[25]
In applying the abovementioned legal principles to the facts of this
case, the first question
that must be answered is: what exactly was
the scope of Mr Tukani’s duties when he fired the shot that
injured young N[....]?
[26]
Although Mr Tukani was adamant that he was employed solely to guard
the mayor and has disavowed
any knowledge of the contents of his job
description, the implications of that documents cannot be so easily
dismissed.
[27]
The ‘Job Description Form’ included in Mr Tukani’s
personnel file relates in
particular to the post title, ‘Close
Protection Officer’, the position to which he had been
appointed. His duties are
described in that document as,
‘activities/tasks associated with maintaining law, order,
safety and security through application
of laid down policing,
protection, firefighting and rescue procedures and attending to
processes aimed at compliance with laws,
by-laws and regulations in
order to ensure any action or situation threatening safety is
identified and promptly attended to’.
[28]
That document also sets out, with commendable detail, the related
functions namely, amongst others:
law enforcement functions;
community policing and security operations; enforcing compliance and
emergency control functions. It
is common cause that those
responsibilities had been approved and assigned by the municipality
to the post of a ‘Close Protection
Officer’. Thus, even
though Mr Tukani was specifically assigned the duty of guarding the
mayor, there can be little doubt
that it was open to the
municipality, at any time, to require of him to perform any of the
other tasks described in the Job Description
Form.
[29]
Viewed through this prism, there can, in my view, be little doubt
that Mr Tukani’s actions
on the night in question fell squarely
within the ambit of that job description. On his own version he was
acting in defence of
Melikhaya and taking steps to prevent the
commission of serious crimes. Mr
Louw
has, in my view,
correctly argued that Mr Tukani’s own subjective view and
understanding of his duties cannot change the
objective purpose and
intention of his employer.
[30]
The municipality did not lead any evidence to gainsay the ineluctable
inference that the Job
Description Form was placed in Mr Tukani’s
file for the purpose of defining and recording his responsibilities
vis-a-vis
the municipality. The fact that Mr Tukani was remiss in not
reading his job description cannot change the ambit and boundaries of
his responsibilities as an employee. Therefore, even though Mr Tukani
may have been assigned the task of protecting the mayor,
the common
cause facts established that when he reacted to Melikhaya’s
pleas for help, he was indeed acting within the course
and scope of
his duties as recorded in the Job Description Form.
[31]
Even if I am wrong in this regard, then at the very least the
plaintiffs have established that
Mr Tukani’s actions were
sufficiently closely linked to the purposes and business of the
municipality. Contrary to what Mr
De La Harpe
SC, who appeared
for the municipality, has argued, this conclusion is justified not
merely by the application of the ‘but
for’ test or
because the municipality had created a danger by allowing Mr Tukani
to retain the firearm at the end of his
working day. As I have
explained above, Mr Tukani’s actions were undoubtedly
sufficiently closely linked to the purposes
for which the
municipality employed him. Those are comprehensively explained in his
job description. I am accordingly of the view
that the plaintiff has
established on a balance of probabilities that the municipality is
vicariously liable for Mr Tukani’s
actions.
Unlawfulness
[32]
I now turn to address the question of wrongfulness. In this regard I
must apply the well-known
test espoused in
Kruger
v Coetzee
[6]
,
namely whether a reasonable person in the position of Mr Tukani would
have foreseen, as a reasonable possibility, that by firing
the shot
in the manner which he did, he would injure another person, and would
have taken reasonable steps to avoid the possibility
of such harm.
[33]
I am mindful though of the dangers inherent in applying the
abovementioned test in an inflexible
and rigid manner. In
Sea
Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd
and Another
[7]
Scott JA cautioned against such ‘rigid adherence to what is in
reality no more than a formula for determining negligence
must
inevitably open the way to injustice in unusual cases’. The
learned judge further said that, ‘[w]hether one adopts
a
formula which is said to reflect the abstract theory of negligence or
some other formula there must always be…a measure
of
flexibility to accommodate the “grey area” case’.
Thus our courts have recognized that ‘while the precise
or
exact manner in which the harm occurs need not be foreseeable, the
general manner of its occurrence must indeed be reasonably
foreseeable’. What is therefore ultimately required of me is to
decide whether Mr Tukani’s conduct fell short of the
standard
of the reasonable person in the circumstances.
[34]
In considering the issue of wrongfulness, it would be remiss of me
not to say that Mr Tukani’s
version of events is, to say the
least, somewhat strange. According to him, at some point, Melikhaya’s
assailant fearlessly
approached him while dragging Melikhaya along.
And even after Mr Tukani had fired warning shots and the assailant
had released
Melikhaya, he still continued to move towards the gate.
One cannot help but wonder for what purpose the assailant proceeded
towards
the firearm-wielding Mr Tukani, brandishing only a knife. It
was almost as if he was determined to provide Mr Tukani with the
opportunity
to shoot at him, literally bringing a knife to a
gunfight. Nevertheless, there was no evidence to gainsay that version
and I am
consequently constrained to decide the case on the basis of
this rather incongruous factual matrix.
[35]
Mr
De La Harpe
submitted that it must be accepted that the
third bullet had struck the tar and ricocheted. He argued that
despite the inherent
danger created by firing a shot, the possibility
of harm was so slight that a reasonable person would not have
foreseen it.
[36]
I disagree with this submission. Mr Tukani claimed that he was a good
shot. He has reasonably
extensive training in the safe handling of a
firearm. He was aware that the houses in that area were prefabricated
structures with
hollow walls, which could easily be penetrated by a
projectile. He should therefore have foreseen the reasonable
possibility of
the bullet injuring another person. Given his training
and experience with firearms, he should have foreseen the possibility
of
the bullet ricocheting, if he fires at an angle into a solid
surface such as a tarred road. And given the fact that both Melikhaya
and his assailant were relatively close to him – he estimated
about 5 paces at the time he fired the third shot – it
was
reasonably possible for him to have fired the shot in a manner so as
to avoid the bullet striking any of the neighbouring properties.
Findings
and order
[37]
I am accordingly of the view that Mr Tukani negligently discharged
his firearm in circumstances
where he reasonably ought to have
foreseen that by firing a shot into the tarred road at an angle, he
would injure another person.
He also negligently failed to take any
steps to avoid the possibility of such injury to other people. In
doing so, he was at all
material times acting within the course and
scope of his employment with the municipality, rendering the latter
vicariously liable
for his delict. Since it is common cause that
N[....]’s injuries were caused by the gunshot fired by Mr
Tukani, I am satisfied
that both factual and legal causation has been
established.
[38]
In the light of these findings, it is unnecessary for me to consider
the other issues relating
to the municipality’s alleged
unlawful actions. These were, in particular, the contended
non-compliance with certain statues
and regulations, and whether the
municipality had acted unlawfully by failing to ensure that Mr Tukani
returned the firearm when
he was off duty and that he was trained and
experienced in the use of a firearm.
[39]
Regarding the issue of the onus, Mr
Louw
, while accepting that
the plaintiffs bore the onus of proving that the municipality is
vicariously liable for Mr Tukani’s
actions, submitted that the
municipality bore the onus of proving, on a balance of probabilities,
that Mr Tukani’s conduct
was not unlawful. In my view, the fact
that my findings on both the issues of vicarious liability and
unlawfulness were based on
common cause facts, renders the question
of the onus unimportant.
[40]
Mr
Louw
has correctly submitted that although Mr Tukani
asserted during his testimony that he was not a party to the
proceedings, all the
pleadings and notices had been duly served on
him. He has, however, decided not to defend the action and is
accordingly also liable
for such damages as the plaintiffs may
eventually prove.
[41]
In the result I make the following order:
1.
The defendants are declared jointly and
severally liable to the plaintiffs for such damages as they may prove
to have suffered arising
from the gunshot injury suffered by the
minor child, N[....], on 2 December 2017;
2.
The defendant shall, jointly and severally,
the one paying the other to be absolved, pay the plaintiffs’
party and party costs,
together with interest thereon, calculated at
the legal rate of interest from a date 14 days after allocatur to
date of payment;
3.
The plaintiffs’ costs shall include:
3.1.
Costs of one inspection
in
loco
;
3.2.
Costs of photographs;
3.3.
Costs of travelling for plaintiff’s
instructing attorneys.
JE
SMITH
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the Plaintiffs :
Adv. S.S.W. Louw
:
Whitesides Attorneys
53 African Street
MAKHANDA
Counsel
for Defendants :
Adv. De La Harpe SC
:
118A Netteltons Attorneys
High Street
MAKHANDA
[1]
[2005] ZACC 8
;
2005
(6) SA 419
at 43 para. 21
[2]
Ibid
at para. 22
[3]
1986
(1) SA 117
(A) at 134 C-E
[4]
Supra
at para. 32
[5]
2021
SA 64
(SCA), at para. 20
[6]
1966
(2) SA 428 (A)
[7]
2000
(1) SA 827
(SCA), at para. 22)