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2022
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[2022] ZAECMKHC 65
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Lunyawo v Minister of Police (1624/2019) [2022] ZAECMKHC 65 (20 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
NOT
REPORTABLE
Case
no: 1624/2019
In
the matter between:
SIKHANYISO
SYDNEY
LUNYAWO
Plaintiff
and
MINISTER
OF POLICE
Defendant
JUDGMENT
Govindjee
J
The
issues
[1]
The plaintiff instituted an action for damages against the defendant,
based on the principle of vicarious liability. He alleges that he was
wrongfully, unlawfully and intentionally assaulted by members
of the
South African Police Service on 9 December 2018 between 23h00 and
01h00 at Emabomvini Locality, Ngqeleni. The plaintiff
also claims
that he was unlawfully arrested without a warrant subsequent to his
assault, and then released.
[2]
The particulars of claim detail the alleged assault in the following
terms:
a.
The plaintiff was pointed with a firearm;
b.
He was handcuffed;
c.
He was hit with open hands on his face;
d.
He was tripped, landing on the floor with his shoulder;
e.
He was trampled upon;
f.
He was throttled; and
g.
He was hit with a stick.
[3]
The plaintiff suffered various injuries as a result. During the
course
of the plaintiff’s evidence, it became apparent to
counsel that further medical reports, relating to the psychological
effects
of the plaintiff’s condition, might be required. An
order was sought and granted separating the merits of the dispute
from
the issue of quantum in terms of Uniform Rule 33(4). The main
issue to be determined at this stage is whether the plaintiff has
proved, on a balance of probabilities, that employees of the
defendant, acting in the course and within the scope of their
employment,
perpetrated the assault that resulted in the plaintiff’s
injuries. A finding as to the alleged unlawful arrest of the
plaintiff
is also required.
The
plaintiff’s evidence
[4]
The plaintiff, a 33-year-old male, testified that he had been woken
by
the sound of wind on the night in question. He looked through the
window and saw a van parked nearby with bright lights on. He went
back to bed to lie down. He then heard a strong knock at the door and
the door being kicked. He immediately went to open the door.
[5]
There were three people at the door. A person he would later
identify
as Mr Mvunyiswa (‘Mvunyiswa’) was the only
person holding a firearm, which he pointed at the plaintiff. It was a
rifle
of sorts. Mvunyiswa was not in uniform but was wearing a
bulletproof vest displaying the word ‘Police’, together
with
a shirt, jeans and boots. The two other people were in uniform.
[6]
Mvunyiswa instructed the plaintiff to take out a pill or tablet. When
the plaintiff informed him that he had no such thing, Mvunyiswa
instructed the other two policemen to search the house. While they
did so, Mvunyiswa pointed the firearm at his back, grabbed him,
pulled his arms behind his back and handcuffed him. He was then
hit
with a flat hand repeatedly, his legs were kicked, he was thrown down
and kicked on his neck. He was also throttled around
his neck.
[7]
This occurred repeatedly according to the plaintiff. Mvunyiswa,
in the absence of the other policemen, asked him to take out ‘the
tablet’, kicked him, pushed him down when he rose,
and
throttled him while his hands were cuffed. His face was also
trampled. At some point Mvunyiswa tightened the handcuffs and
assaulted him twice with a broomstick, hitting him on his shoulders
as he lay face down.
[8]
The other policemen returned and advised Mvunyiswa that they had not
found
anything. He instructed the taller policeman to grab the
plaintiff and place him on his back. Mvunyiswa then hit him with the
broomstick
twice on his soles, before searching the house himself.
Nothing was found. He returned and removed the handcuffs.
[9]
The plaintiff was able to describe certain physical features,
commenting
on the height, weight and complexion of the persons who
entered his home. He felt weak after the attack and noticed injuries
on
his body. His arms were swollen, he struggled to swallow and his
waist was painful. Mvunyiswa left the premises at some stage and
he
was left with the two individuals in uniform. The shorter or the two,
a person dark in complexion, asked him about a girl being
educated
with his assistance and supposedly at UNISA. He replied that the
person in question was not his girlfriend, but was a
relative
studying engineering at Walter Sisulu University. Thereafter he was
informed that he was being arrested. He changed his
trousers as they
were torn, put on his shoes and walked behind the two towards the
police van, which was marked as such. The person
who had been
assaulting him exited the vehicle. The taller of the two told him to
open the door and enter the van. He replied that
he could not do so
given his pain. He was then told to return to his home and the three
individuals drove off in the police van.
He returned to bed and
noticed that the time was 01h13.
[10]
The plaintiff telephoned his girlfriend who came to collect him so
that he could sleep
at her home. She helped him to wash and he
hitchhiked to the clinic, informing the nurse there that he had been
assaulted by police.
He was advised to go to the hospital to lay a
charge, which he did. He was subsequently informed by a doctor to
bring a J88 form
from the police station, which he did the following
day. Initially the police refused to provide the form, but he managed
to obtain
this with a captain’s assistance. He informed a
policeman that he had been assaulted by other policemen. That person
noticed
the marks around his wrist and asked if they had been caused
by handcuffs. The plaintiff returned to the hospital with the J88
form, which the attending doctor completed.
[11]
A J88 report on a medico-legal examination, completed by Dr Hart at
Canzibe Hospital, was
accepted into evidence. It is clear from the
report that the plaintiff communicated to the doctor, via an
interpreter, that he
had been assaulted by policemen and that they
had tried to find drugs at his home. The doctor’s clinical
findings, which
were depicted graphically as well, included the
following:
‘
Neck
– bilateral hematoma and abrasion lateral to the larynx;
Wrist
– abrasions circular probably due to cuffs
Abrasions
to lower back
Feet:
no defects noted.’
[12]
The plaintiff also explained how his aunt became involved in the
matter. He had telephoned
her and explained that he had been
assaulted by the police. She had insisted on accompanying him to the
police station because
she was concerned that they would not pay
sufficient attention to the plaintiff if he proceeded on his own.
When they visited the
police station, they were advised to obtain
names of suspects, failing which a docket would not be opened. His
aunt then arranged
for them to meet with the station commander. When
they returned to the police station for that purpose, the plaintiff
observed
one of the people that had entered his home standing at the
door of the station. The plaintiff, assisted by his aunt, explained
what had happened to the station commander, a charge was laid and a
docket was opened. The plaintiff’s signed statement,
according
closely with his evidence regarding his assault, was included in the
trial bundle and accepted into evidence. The plaintiff
explained that
he did not know the names of his alleged attackers at that point in
time, so that no names appear in that statement.
[13]
The plaintiff says he identified Mvunyiswa when Mvunyiswa visited his
workshop to have
his tyre pumped. A name tag identified him. This was
the stouter, lighter person he had described during his evidence, and
the
person who had not been wearing a uniform on the day in question.
He subsequently identified one of the other persons as ‘Malombo’
with the assistance of his aunt, who is a councillor. Based on his
description, she had investigated the matter and indicated that
the
person’s real name was ‘Pilisa Yolwa’. The
plaintiff had then observed that person’s profile on Facebook
and identified him as the ‘Malombo’ he had seen. His aunt
had also provided a name for the other person (‘Madyibi’),
but the plaintiff had not been able to verify this. He had
subsequently explained to the Independent Police Investigative
Directorate
(IPID) that he would be able to identify two of the
persons who had entered his home. He further explained to them how he
had come
to identify Mvunyiswa.
[14]
That evidence is partially supported by an undated statement made by
the plaintiff to the
police, which explains Mvunyiswa’s
identification at the tyre repair centre, and the reason that the
plaintiff was able to
remember his face. The statement also
indicates, however, that the plaintiff would not be able to identify
the other two persons,
‘even in an identification parade’.
The plaintiff testified that he had made the statement during
February 2022.
[15]
The plaintiff’s injuries are clearly visible in a series of
colour photographs taken
approximately a week after the incident. The
plaintiff explained that the first two show markings seemingly
consistent with the
application of tight handcuffs, with scabs having
formed in some places. The third and fourth photos indicate neck
wounds allegedly
caused by Mvunyiswa’s throttling, and the
final photo shows marks on the plaintiff’s back from when he
had been tripped
and had fallen. Those injuries accord with the J88
medical report.
[16]
The plaintiff demonstrated in court that some of those scars remain
visible. He had taken
pain medication for two months and experienced
discomfort in his throat, which had now passed. For a month he had to
eat soft food
or watery porridge. He also had difficulties sleeping
after the incident and his outlook towards the police had changed.
The events
were described as ‘emotionally painful’ but no
counselling had been sought. The plaintiff had managed to continue
with
his business with full-time assistance.
[17]
Under cross-examination, the plaintiff testified that he had been
scared when he saw the
vehicle outside his bedroom window and heard
the rough knock on the door. He thought the door was going to be
broken but had not
asked who was outside. He was shocked and scared
when his arms were pulled back, he was handcuffed and subsequently
assaulted by
the person he would later identify as Mvunyiswa.
[18]
The plaintiff disputed the part of his statement to IPID stating that
he would not be able
to identify the other two police officials. He
had only been asked two questions. The rest of the statement had been
based on information
taken from the docket. The plaintiff had,
however, signed the statement. His highest level of education was
grade 11.
[19]
The plaintiff accepted that the SAPS register at Ngqeleni indicated
that Mvunyiswa had
not been on duty on the day of the incident. He
steadfastly maintained that Mvunyiswa had been at his home and
assaulted him between
23h00 and approximately 01h15. When the
plaintiff had been weakened by the assault, Mvunyiswa had told the
others to take off his
handcuffs as he was to be arrested. He had
then gone to the van. The plaintiff’s hands had swollen but he
had managed to
change his trousers and shoes before following the
other two outside to the van. He had observed that it was a police
van based
on the writing on the vehicle, but had not seen the
registration number. When told to open the van and enter, the
plaintiff had
indicated that he was unable to do so and asked them to
open it for him. He had then been left behind and told to go to bed.
The
defendant’s case
[20]
Mvunyiswa testified that he was a police sergeant. He had been a
constable during 2018.
He repeatedly denied the allegations of
assault. He had been at home at the time, far away from the
plaintiff’s home and
off-duty.
[21]
The witness explained the proper protocol if the police had decided
to pursue an operation,
with reference to the applicable SAP books.
Such an operation would have to be approved by the commander. No SAP
15 book was available.
That document would have contained the duties
for the day, including the persal number, surname and initial of the
person and whether
they would be a driver or crew. From the SAP 10
book it was clear that there was no scheduled operation on the night
in question.
The witness was off-duty and his name would not appear
on that form.
[22]
Mvunyiswa explained the procedure for signing out a large firearm.
This would be written
in the SAP 10 by the commander and signed out.
An off-duty officer would never be given permission to carry a rifle.
Police officers
not in uniform were not permitted to wear a police
vest, unless they were working with investigations. In that case the
colour
of the bullet vest would be a different colour. Any authorised
operation would involve officers in full uniform. It was not
permitted
for an off-duty police officer to wear a bullet vest. These
vests were, however, given to police officers to keep and would
contain
an infantry number for tracing purposes.
[23]
The witness testified that he could not have handcuffed the plaintiff
as his handcuffs
were not working at the time. A bakkie canopy had
fallen and the cuffs he had been issued had twisted and would not
work. In any
event, he was not at the place of the assault on the day
it was alleged to have occurred. The matter had been investigated by
Mr
Ndlovu from IPID and he had made a statement denying the
allegations.
[24]
Mvunyiswa admitted knowing the plaintiff from the tyre repair centre
where he worked. He
suggested that his own work with crime prevention
in Ngqeleni might have caused the false allegation. He had once been
part of
a search of people sitting close to the plaintiff’s
place of work that had resulted in confiscation of knives. The
plaintiff
had claimed that he used the knife for his work, even
though he had been seated with other people close to a house some
distance
away from the tyre repair centre. Mvunyiswa had advised him
that he could not claim to use the knife for work when he was not
actually
at the workplace, but seated next to this house. The
confiscation of the knives had not been well-received by the
civilians present.
[25]
During cross-examination, Mvunyiswa explained the purpose of a pocket
book. No pocket books
had been included in the trial bundle. The
senior IPID investigating officer had made mention of a ‘SAPS
register at Ngqeleni’
when confirming that Mvunyiswa had not
been on duty. This would likely refer to the SAP 10 and 15 books. The
entries in those books
had to be considered together. The commander
might, for example, have indicated in the SAP 10 that all members of
‘Relief
C’ were present and on duty that evening. Those
names would appear on the SAP 15.
[26]
The documentation available did not reflect the police commander or
relief commander on
the day in question. As to rifles, these had
handles and must be held on the side of the body, pointing down.
Police-issue rifles
often did not have slings. When a firearm was
requested, the commander would make an entry in the SAP 10. The
occurrence book serial
number, contained in that book, would be
required for the firearm register. The commander would counter-sign
before the weapon
was handed over to the police officer concerned.
The witness explained that the entries contained in the copies of the
SAP 10 included
in the bundle should be read with the occurrence book
register, but that that register had not been included as part of the
discovered
documentation.
[27]
The SAP 10 reflected those firearms that had been booked out at 18h32
to Cst Madyibi, Adam
and Ntaka. These could be either their personal
firearms, which might have been kept at the station for safe-keeping,
or separate
state-issued firearms. The SAP 10 reflected that Cst
Madyibi had booked out a motor vehicle with Sgt Ceba at 19h00 in
order to
patrol around the Ngqeleni central business district and
surroundings. It is evident from the document that Ceba and Madyibi
only
concluded their patrol and booked the vehicle back at 04h45, and
that the vehicle was inspected at that time by Captain Mfono. The
firearms signed out by Madyibi, Adam and Ntaka were not reflected in
the list of firearms signed in at 05h35. Various rifles, all
starting
with reference numbers ‘354…’ were noted. The
witness indicated that not every rifle necessarily was
numbered with
that number. One of the firearms signed out by Madyibi, Adam and
Ntaka at 18h32 had a reference number commencing
with ‘354…’
and the witness accepted that this would have been a rifle.
[28]
The witness confirmed that his handcuffs, uniform and issued bullet
vest were kept at his
home. The handcuffs were definitely broken
throughout 2018, and were replaced only during the past year. When
arresting somebody
he would typically use the handcuffs of a
colleague, but this was infrequent. When confronted with the pictures
demonstrating the
plaintiff’s injuries, the witness stated that
he had never seen marks of this nature caused by handcuffs, even
those that
had been secured very tightly. He maintained that it was
possible for rope to have caused such marks. While he accepted that
handcuffs
could be tightened, he was unconvinced that they could
cause such injuries. He acknowledged that it was possible for an
off-duty
police officer to commit acts of misconduct without his name
appearing in the SAP records. Being off-duty, that person’s
name would simply not appear in the documentation for the day in
question.
[29]
In response to questions from the court, Mvunyiswa stated that his
navy bullet vest, containing
the inscription ‘Police’,
did not fit him during 2018. Only recently had he received a vest
that fitted him, following
the retirement of a colleague. He
testified that he lived more than 45 km away from work and did not
see his colleagues when off-duty.
His vehicle would be parked at the
police station in Mthatha and police transport would take him to
work. He had checked his records
following the IPID enquiries and
ascertained that he had been off-duty at the time for a period of
four days.
Analysis
[30]
Two
irreconcilable versions have been placed before court, the
defendant’s plea constituting a bare denial. To arrive at an
outcome, findings must be made on the credibility of the factual
witnesses, their reliability and the probabilities, applying the
approach detailed in cases such as
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et Cie and
Others
(‘
Stellenbosch
Farmers’ Winery
’)
[1]
and
Dreyer
and another NNO v AXZS Industries (Pty) Ltd
.
[2]
[31]
The plaintiff made a generally favourable impression in the witness
box. His testimony
was, on the whole, measured and convincing, and
supported by the photographs and medical report. I appreciate that
there was the
potential of bias in his narrative, given that the
outcome of his claim for damages rested on his performance as a
witness. But
this concern was ameliorated by the clear manner of his
testimony, which did not seek to exaggerate his experience or
injuries.
The major external contradiction in his evidence related to
his ability to identify any of the uniformed police officers he
alleges
entered his home. His signed statement submitted to IPID
suggested that he could not identify either of these men, yet he
testified
that Yolwa had subsequently been identified with the
assistance of his aunt and social media. His recollection of events
was good
and his explanation for identifying Mvunyiswa plausible,
particularly considering that Mvunyiswa acknowledged having noted his
presence during the incident that occurred at the plaintiff’s
workplace. It is also apparent that the plaintiff had gone to
some
lengths to lay charges at the time of the incident, and in travelling
to the clinic, hospital and police station to seek assistance
and to
lay a charge. This is consistent with his version of events and an
ordeal at the hands of the police.
[32]
Mvunyiswa was also steadfast under cross-examination, maintaining
that he had not been
anywhere near the scene of the assault and
arrest as he had been off-duty. He appeared, however, to be keen to
embellish matters
in order to proclaim his innocence. For example, he
made much of his handcuffs having been broken at the time, even
though it would
have been a relatively simple matter to utilise the
handcuffs of another officer. He only mentioned belatedly that his
bullet-vest,
containing the inscription ‘Police’, did not
fit him during 2018 and that he had only recently received a vest
that
fitted. He refused to concede that the wrist abrasions suffered
by the plaintiff could possibly have been caused by tight handcuffs,
offering instead the suggestion that those injuries might have been
caused by rope. That outright rejection of the possibility
of
handcuffs causing the injuries is unwarranted when all the evidence,
including the medical report and photographic evidence,
is
considered. Mvunyiswa’s credibility as a witness is further
affected by his inherent bias and his demeanour in the witness
box.
As to the former consideration, he has already been questioned by
IPID and denied all allegations. There would be serious
repercussions
in the event that this court found in favour of the plaintiff. As to
the latter, he adopted a condescending, somewhat
sardonic approach
and tone to the allegations levelled against him and his performance
as a witness was not completely convincing.
[33]
Mvunyiswa’s testimony, also in relation to the contents of the
docket and police
standard operating procedures, contribute to the
probabilities favouring the plaintiff’s version. The docket
reflects that
two motor vehicles had been booked out for patrol
around Ngqeleni central business district and surroundings. In the
case of the
vehicle booked out by Sgt Ceba and Cst Madyibi at 19h00,
this vehicle was only booked back at 04h45 the following morning,
with
no report apparent from these officers at all between 22h00 and
this time. Madyibi also appears to have signed out a rifle. There
is
no information apparent from the docket whatsoever as to the
movements of the occupants of the other vehicle. The docket also
reflects that Mvunyiswa was not on duty, supporting the plaintiff’s
version that he had not been uniformed during the assault.
[34]
Assessing
the probabilities arising from the evidence presented, in the light
of my assessment of the credibility of the witnesses
and the
circumstances of the case, results in the conclusion that the
plaintiff’s version of events must, on the whole, be
accepted.
In particular, I find that he was, on balance, handcuffed and
assaulted on the day in question by Mvunyiswa as alleged.
The
injuries he suffered appear to be consistent with this version, as
reflected by the medical report and the photographs taken
approximately a week after the incident. The single inconsistency
between his statement and testimony, relating to his ability
to
identify the other police officers present, is insufficient to tilt
the balance in favour of the defendant when considered in
the light
of the evidence as a whole.
[3]
It remains the task of this court to consider all the evidence, to
decide whether it is reliable or not and to decide whether the
truth
has been told, despite any shortcomings.
[4]
As indicated, I am satisfied that the plaintiff was truthful in his
testimony.
[35]
The defendant failed to call any witnesses to support its case other
than Mvunyiswa. As
indicated, and based on my assessment of the two
opposing versions in accordance with the approach advocated by
Stellenbosch Farmers’ Winery
, it is my view that the
probabilities favour the plaintiff’s evidence as to what
occurred, including his assault, the manner
in which his injuries
were suffered and his arrest. In support of this conclusion, it may
be added that the defendant failed to
discover the SAP 15 form, the
firearm register and the logbook associated with each vehicle and
that the defendant satisfied itself
with a bare denial and the
testimony of Mvunyiswa. Neither Madyibi nor Yolwa were called to
testify on behalf of the defendant.
Furthermore, the efforts and
outcome of the IPID investigation were referenced only tangentially.
[36]
It is true
that there is no fixed rule to the effect that the failure to call
every available witness must result in an adverse
inference being
drawn. Each case depends on its own facts and circumstances.
[5]
One of the circumstances that must be taken into account and given
due weight is the strength or weakness of the case which faces
the
party who refrains from calling the witness.
[6]
In this case the plaintiff has made out a case that he was assaulted
by Mvunyiswa in the presence of other police officers and
placed
under arrest for a short period of time. As explained, his version is
supported inter alia by his identification of Mvunyiswa
courtesy of
his interaction with him at the tyre repair centre, his description
of Mvunyiswa having been in civilian clothing,
his subsequent
identification of Yolwa, the SAP 10 documentation seemingly
confirming aspects of his allegations and the nature
of the injuries
suffered, as evinced by the photographic evidence and the medical
report.
[37]
An adverse
inference is drawn because of the likelihood that the witness has not
been called out of fear that they would have testified
in a manner
that exposed facts unfavourable to that party. The inference would,
however, only be proper if the evidence is available
and if it would
elucidate the facts.
[7]
As I
understood the plaintiff’s evidence, he had not personally
claimed that Madyibi had been one of the policemen involved
in the
incident. His aunt had suggested this for an unknown reason and was
not called to testify. Leaving aside the signing out
of the rifle,
there is no basis for believing that Madyibi’s testimony would
have elucidated the facts any more than the
testimony of any of the
other police officers who had been patrolling Ngqeleni town that
evening. It would, in my view, be inappropriate
to draw an adverse
inference from the failure to call Madyibi.
[38]
The
position of Yolwa is, however, somewhat different. The plaintiff
testified that he was the ‘Malombo’ that he had
identified with the assistance of Facebook, who was one of the police
officers present at the time of the incident. He was a witness
more
readily available to the defendant and, having been identified by the
plaintiff, his testimony may have shed light on what
occurred. As a
result, an adverse inference should be drawn from the failure to lead
his evidence.
[8]
I reiterate
that these remarks simply add to the findings on the probabilities
which, on their own, are sufficient to find for
the plaintiff on the
facts. Having considered the plaintiff’s credibility as part of
testing his allegations against the
general probabilities, I am
satisfied that his version of events is true and accurate and
therefore acceptable. The evidence of
Mvunyiswa, in so far as it
conflicts with the plaintiff’s version, is rejected as false.
[39]
Although counsel for the defendant did not argue the point, and also
did not address the
issue in the heads of argument submitted, the
remaining question is whether the defendant should be held
vicariously liable for
the conduct of its employees in the
circumstances of this case.
Vicarious
liability
[40]
An employer
is considered to be answerable for the delicts of an employee
committed in the course of employment. The reason for
this was
explained by Innes JA, quoting Chief Justice Shaw, of Massachusetts,
in
Mkize
v Martens
:
[9]
‘
I
am answerable for the wrongs of my servant or agent, not because he
is authorized by me or personally represents me, but because
he is
about my affairs, and I am bound to see that my affairs are conducted
with due regard to the safety of others.’
[41]
An employer
has, however, not been held to be responsible for the acts performed
by an employee solely for his own interests and
purposes and outside
his authority. Such acts are not considered to be ‘in the
course of his employment’, even though
they may have occurred
during his employment.
[10]
The
difference between the two types of cases is notoriously difficult to
determine. It is essentially a question of fact to be
decided upon
the circumstances of the particular case.
[42]
The modern
test for vicarious liability in cases of ‘deviation’ from
authorised duties is based on the majority judgment
of Jansen JA in
Rabie
:
[11]
a. If an employee is
seeking, albeit improperly, to advance his or her employer’s
interests, the employer may be vicariously
liable. This is a
subjective test. On the subjective test there would be no vicarious
liability if the employee were acting solely
in his or her own
interests.
b.
Even if there is no vicarious liability on the subjective test, the
employer
may still be liable if objectively there is a sufficiently
close link between the employee’s acts for his own interests
and
the purposes and business of the employer.
[43]
The test
has subsequently been considered by the Constitutional Court in a
number of judgments.
[12]
Having regard to s 39(2) of the Constitution and comparative law,
O’Regan J developed the law upon the foundation provided
by
Rabie
,
in
K v
Minister of Safety and Security
,
as follows:
[13]
‘
From
this comparative review, we can see that the test set in
Rabie
,
with its focus both on the subjective state of mind of the employees
and the objective question, whether the deviant conduct is
nevertheless sufficiently connected to the employer’s
enterprise, is a test very similar to that employed in other
jurisdictions.
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.’
[44]
Various
cases have confirmed an employer’s liability to a third party
for the act of an employee considered to be ‘in
the course of
employment’, even though the act itself is unlawful or
prohibited.
[14]
Courts have
confirmed that the application of the general principle does not
entail that every act of an employee committed during
the time of
employment, in the advancement of his personal interests or the
achievement of his own goals, necessarily falls outside
the course
and scope of his employment.
[15]
[45]
It has also
been held that whether an employee had indeed abandoned their
employment was a factual question which had to be decided
on the
probabilities, mainly, if not exclusively, on the degree of
digression.
[16]
In answering
this question, a court must have regard to all matters relevant to
the question.
[17]
Ultimately,
a sufficiently close link must exist between the wrongful act of the
employee, on the one hand, and the business or
enterprise of the
employer, on the other.
[18]
Importantly, reference to a link with the duties, authorised acts or
employment of the employee should, in this context, be avoided.
This
is because the purpose of the development of the law in
Rabie
and
K
was to provide redress to a victim against an employer ‘even
though the wrongful act did not in any manner constitute the
exercise
of the duties or authorised acts of the employee, if it was
objectively sufficiently linked to the business or enterprise
of the
employer.’
[19]
[46]
In
Stallion
Security
,
the principle that a ‘sufficiently close’ link would not
be established when the business of the employer furnished
the ‘mere
opportunity to the employee to commit the wrong’ was considered
to be a convenient place to start.
[20]
The example provided in that case explains the point: if, for
example, an employee assaults a co-employee or customer whilst on
duty and at the workplace over an entirely private matter, the
employer would in the absence of any other consideration not be
vicariously liable.
[21]
As a
result, something more than a mere opportunity or ‘but for’
causal link is required. This ‘something more’
depends on
the factual circumstances and normative considerations relevant to
each case and on whether, in the light thereof, the
rule should be
further developed.
[22]
[47]
In
K
,
the Constitutional Court reproduced the following important
principles for determining whether an employer is vicariously liable
for an employee’s unauthorised intentional wrong, relying on
the unanimous judgment in
Bazley
:
[23]
‘
Courts
should be guided by the following principles:
(1)
They should openly confront the question of whether liability should
lie
against the employer, rather than obscuring the decision beneath
semantic discussions of “scope of employment” and “mode
of conduct”.
(2)
The fundamental question is whether the wrongful act is
sufficiently
related to conduct authorised by the employer to justify the
imposition of vicarious liability.
Vicarious liability is
generally appropriate where there is a significant connection between
the
creation or enhancement of a risk
and the wrong that
accrues therefrom, even if unrelated to the employer’s desires.
Where this is so,
vicarious liability will serve the policy considerations of provision
of an adequate and just remedy and deterrence.
Incidental connections
to the employment enterprise, like time and place (without more),
will not suffice.
(3)
In determining the sufficiency of the connection between
the
employer’s creation or enhancement of the risk
and the
wrong complained of, subsidiary factors may be considered. These may
vary with the nature of the case. When related to
intentional torts,
the relevant factors may include, but are not limited to, the
following:
(a)
the opportunity that the enterprise afforded the employee to
abuse his or her power;
(b)
the extent to which the wrongful act may have furthered the
employer’s aims (and hence be more likely to have been
committed
by the employee);
(c)
the extent to which the wrongful act was related to friction,
confrontation or intimacy inherent in the employer’s
enterprise;
(d)
the extent of power conferred on the employee in relation to the
victim;
(e)
the vulnerability of potential victims to wrongful exercise of
the employee’s power.’ [Emphasis in original.]
[48]
In
Minister
of Safety and Security v Japmoco BK t/a Status Motors
,
[24]
policemen had intentionally issued false motor vehicle clearance
certificates, knowing that innocent third parties could be misled
to
their detriment thereby. Subjectively speaking, their prime objective
was to serve their own pockets. Objectively speaking,
however, the
Supreme Court of Appeal held that each of them was performing the
exact task assigned to them. It could not be said
that they had
totally distanced themselves from their assigned duties.
[25]
There was a close connection between the employees’ actions for
their own interests and purposes and the business of the
employer, so
that the appellant was, in principle, responsible for its employees’
actions.
[26]
[49]
So too in this instance, as demonstrated by the purported search,
arrest and release of
the plaintiff by the police officers. Two
officers were in uniform and the third wore a police vest over plain
clothes. The officers
attended the scene in a police vehicle. It must
be accepted, on the probabilities, that two were on duty and at least
one carried
a rifle issued by their employer. The probabilities
favour police-issued handcuffs being used to inflict harm on the
plaintiff.
Although the motive is uncertain, based on Mvunyiswa’s
testimony it is likely that this relates to friction and
confrontation
inherent in certain interactions between police and
civilians. Police officers are placed in a position of power over
ordinary
citizens. Persons in the position of the plaintiff are
vulnerable to such conduct and helpless in the face of it. For these
reasons
the link is, objectively, sufficiently close, going beyond
the mere creation of an opportunity to cause such harm, so that the
defendant must be held responsible for the conduct of its employees.
[50]
The plaintiff has, in my view, succeeded in discharging the onus of
proof and is entitled
to a judgment on the merits, together with
costs.
Order
[51]
The following order will issue.
1.
The plaintiff’s claim for unlawful arrest and assault
on 9
December 2018 succeeds on the merits. The defendant is liable for any
resultant damages that the plaintiff is able to prove.
2.
The defendant shall pay the plaintiff’s taxed or agreed
costs
on a party and party scale.
A.
GOVINDJEE
JUDGE
OF THE HIGH COURT
Heard
:20
July 2022
Delivered
:20
September 2022
Appearances:
Plaintiff’s
Counsel:
Adv SA Sephton
Instructed
by
:
Mbambo Attorneys
Inc.
Plaintiff’s
attorneys
112
Ebden Street
Queenstown
Email:mbambocompany66@gmail.com
Defendant’s
Counsel:
Adv SM Luzipho
Instructed
by
:
State Attorney
Defendant’s
Attorneys
94
Sisson Street
Broadcast
House
Fortgale
Mthatha
Email:BShumane@justice.gov.za
[1]
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et Cie and
Others
2003
(1) SA 11
(SCA) pp 14, 15.
[2]
Dreyer
and another NNO v AXZS Industries (Pty) Ltd
2006
(5) SA 548 (SCA).
[3]
See,
for example, the judgment of Nepgen J in
S
v Govender and Others
2006 (1) SACR 322
(E) on the challenges associated with police
statements and the approach to adopt in evaluating such
inconsistencies.
[4]
See
S
v Mafaladiso and Others
2003 (1) SACR 583
(SCA) at 593e-594h.
[5]
See
Magagula
v Senator Insurance Company (Ltd)
1980
(1) SA 717
(N) at pp721-2.
[6]
Titus
v Shield Insurance Co Ltd
1980
(3) SA 119
(A) at 133D-E.
[7]
Elgin
Fireclays Ltd v Webb
1947
(4) SA 744
(A). Also see
HAL
obo MML v MEC for Health, Free State
2022
(3) SA 571 (SCA).
[8]
See
Munster
Estates (Pty) Ltd v Killarney Hills (Pty) Ltd
1979
(1) SA 621 (A)
[9]
1914
AD 382
at 390.
[10]
Ibid
.
[11]
Minister
of Police v Rabie
1986
(1) SA 117
(A) at 134C-F. See
Pehlani
v Minister of Police
(2014) 35
ILJ
3316 (WCC) at para 23.
[12]
See,
in particular,
K
v Minister of Safety and Security
[2005] ZACC 8
;
2005
(6) SA 419
(CC);
F
v Minister of Safety and Security and Another
2012 (1) SA 536 (CC).
[13]
K
supra
at
para 44.
See
Stallion
Security (Pty) Ltd v Van Staden
2020 (1) SA 64
(SCA) (‘
Stallion
Security
’)
at para 18.
[14]
See,
for example,
Estate
van der Byl v Swanepoel
1927 AD 141.
[15]
Viljoen
v Smith
[1996] ZASCA 105
;
1997
(1) SA 309
(A) (‘
Viljoen
’)
at
315E-G. Also see
Minister
of Safety and Security v Jordaan t/a Andre Jordaan Transport
2000 (4) SA 21 (SCA).
[16]
Viljoen
supra
at
316J-317B.
[17]
Bezuidenhout
NO v Eskom
2003
(3) SA 83
(SCA) at para 23.
[18]
Stallion
Security supra
at
para 19.
[19]
Ibid
.
[20]
Stallion
Security supra
at
para 20. See
Bazley
1999 Can LII 692 (SC)
;
[1999] 2 SCR 534
(‘
Bazley
’).
[21]
Also
see the nature of the examples where employers will not be
vicariously liable cited in
Bazley
supra
at
para 35, including the harm caused by a security guard who decides
to commit arson for his or her own amusement.
[22]
Stallion
Security supra
at
para 21.
[23]
It
might be added that the court in
Bazley
indicated specifically that the principles enunciated were
appropriate for application in instances where precedent was
inconclusive
(at p 535), and that in such cases the next step would
be to determine whether vicarious liability should be imposed in
light
of the broader policy rationales behind strict liability (at
para 15). While that case went on to apply the factors identified
to
the instances of sexual abuse applicable in that matter, these
factors were specifically considered to be ‘general
considerations’ applicable to ‘intentional torts’:
at p 536.
[24]
Minister
of Safety and Security v Japmoco BK t/a Status Motors
2002
(5) SA 649 (SCA).
[25]
At
para 12.
Cf
the
remarks of Malan J in
Columbus
Joint Venture v ABSA Bank Ltd
2000
(2) SA 491
(W) at 512H-I.
[26]
At
para 16, 17.