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[2020] ZAGPPHC 4
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Mathibela v Minister of Police (36972/2017) [2020] ZAGPPHC 4 (15 January 2020)
IN THE NORTH GAUTENG HIGH
COURT, PRETORIA
[REPUBLIC OF SOUTH AFRICA]
CASE NUMBER: 36972/2017
15/1/2020
In
the matter between:
PORTIA
MATHIBELA
PLAINTIFF
And
THE
MINISTER OF POLICE
DEFENDANT
JUDGMENT
Mavundla,
J.
[1]
The plaintiff is an adult female residing at Winterveldt, Gauteng
Province. She sued
the defendant for damages she allegedly suffered
in an amount of R4, 000, 000, 00 (four million rand) as the result of
being unlawfully
shot by one Mr Seloane, who at the relevant time was
a member of and in the employ of the South African Police Service,
but was
off duty, on 16 July 2016. It is common cause that the
handgun used in the shooting incident was Sealoane's SAPS issued, in
respect
of which he had been issued with a temporary firearm licence.
[2]
It
needs mentioning that, by agreement between the parties, the issue of
quantum
was
separated from the merits in terms of rule 33(4) and postponed
sine
die.
The only issue to be determined
in the merits, is the question of liability, in particular, whether
the defendant can be held vicariously
liable for the actions of
Seloane, in shooting the plaintiff: (i) at a private function; (ii)
when he was not in uniform; (iii)
travelling in his own motor
vehicle; (iv) not on duty; (v} pursuing his own interest (on his own
frolic); (vi) having deviated
from the generally accepted norm.
[3]
It
is common cause that on the relevant date of the shooting incident,
there was a family party
or
function
in progress at the family home. Seloane suspected the plaintiff of
having a romantic relationship with a certain gentleman
who had also
attended the party. An argument ensued between the plaintiff and
Seloane. This resulted in Seloane shooting the aforesaid
gentleman
and the plaintiff. He fired several shots at and which hit both the
said gentleman and the plaintiff. Seloane eventually
loaded the
plaintiff into his vehicle and rushed her to the hospital, where she
was treated. Luckily the injuries sustained by
the plaintiff were not
fatal. Seloane was eventually arrested and charged with two counts of
attempted murder, for which he was
duly convicted.
In
casu,
it is common cause that
Seloane when he shot at the plaintiff he wanted to kill her.
[4]
The
respective counsel for the parties are
ad
idem
that the test for vicarious
liability was as enunciated and developed in the following
authorities:
Rabie v Minster of
Police;
[1]
K v Minster of Safety and Security
[2]
and
F
v Minister of Safety and Security,
[3]
namely, a two stage enquiry for the
imposition of vicarious liability in the so called deviation cases.
Deviation is a matter where:
firstly, subjectively speaking the
wrongdoer was not on his master's business and therefore did not
create a vicarious link, having
regard to these subjective
considerations of the wrongdoer. Secondly, the state of enquiry is
whether, objectively speaking, there
is a sufficiently close link
between the employer's conduct and the business of the employer, At
this stage of enquiry various
factors and considerations should be
weighed as was formulated in Kand F, vide preceding pargraph.
[5]
It was submitted on behalf of the
defendant that:
5.1
in
casu,
the shooting could not have
been foreseen by the defendant or its functionaries in issuing
Seloane with a firearm, relying,
inter
alia,
on the decision in the matter
of
Booysen v Minster of Safety and
Security
[4]
,
because the shooting took place in a
domestic lover's setting where Seloane and plaintiff were not
relating to each other as police
officers and citizen; the plaintiff
never reposed trust in Seloane due to his employment as a police
reservists with SAPS; there
was no evidence that Seloane acted as a
police officer, nor was there evidence that when he was issued with
the firearm, the management
of SAPS was aware or should have been
aware that this created a material risk of harm to the community, in
particular to the plaintiff,
his girlfriend.
5.2
In the matter of
Minister
of Safety and Security v Nancy Msi
[5]
the Supreme Court of Appeal
cited its judgment in the
Booysen
matter where the Supreme Court of
Appeal held that:
"The finding of liability
based on the mere fact of the SAPS issuing firearm to a police
officer, amounts to imposition of
strict liability which is
impermissible. For liability to arise under such circumstances there
must be evidence that the police
officer in question, was for one
reason or the other, known to be likely to endanger other people's s
lives by being placed in
possession of a firearm, and despite this he
or she nevertheless was issued with a firearm or permitted to
continue possessing
it. Such was the situation in F, where the police
officer was retained in the employ of SAPS as a detective despite
previous criminal
convictions".
[6]
In
the matter of
Minister of Police v
Rabie
[6]
the Supreme Court of Appeal held
that:
"it seems that an act done by
a servant solely for his own interest and purposes, although
occasioned by his employment, may
fall outside the course and scope
of his employment, and in deciding whether an act by the servant does
so fall, some reverence
is to be made to the servant's intention
(cf
Estate van Der Bijl v Swanepoel
1927 AD
141
at 150). The test is in this regard
subjective. On the other hand, if there is
nonetheless a sufficient close link between the
servant's acts for his own interest and purpose and the
business
of his master, the master may yet be liable. This is an
objectives test."'
[7]
The Constitutional Court in the case of
K
v Minster of Safety
&
Security
[7]
adopted the test
laid down in the
Rabie
case. The
Constitutional Court through O'Regan J correctly held when it stated
the test as follows:
"[32] The
approach makes it clear that there are two questions to be asked. The
test is whether the wrongful
acts were done solely for the purposes
of the employee. This question requires a subjective consideration of
the employee's state
of mind and is purely factual question. Even if
it is answered in the affirmative, however; the employer may
nevertheless be liable
vicariously if the second question, an
objective one, is answered affirmatively. That question is whether,
even though the acts
done have been done solely for the purpose of
the employee, there is nevertheless a sufficient close link between
the employee's
act for his own interest and the purpose and business
of the employer. This question does not raise purely factual
questions, but
mixed questions of fact and law. The question of law
raises relate to what is 'sufficiently' 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
objectives of the Bill of Right" .
[8]
In the matter of
ABSA
Bank v Bond Equipment (Pretoria) (Pty) Ltd
[8]
it was held
that:
[5]
The standard test for vicarious liability of a master for the delict
of a servant
is whether the delict was committed by the employee
while acting in the course and scope of his employment. The inquiry
Is frequently
said to be whether at the relevant time the employee
was about the affairs, or business, or doing the work of, the
employer (see
for example,
Minister of Police v Robie
1986 (1)
SA 117
(A) at 132 G;
Minister of Law and Order v Ngcobo
1992(4)
SA 822(A) at 827B). It should not be overlooked, however, that the
affairs of the employer must relate to what
the
employee was generally employed or specifically instructed to
do. Provided that the employee was engaged in activity
reasonably
necessary to achieve either objective, the employer will be liable
even where the employee acts contrary to express
instructions (see
for example,
Estate van der Byl v Swanepoel
1927 AD 141
at
145-146, 151-152). It is also clear that it is not every act
committed by an employee during the time of his employment which
is
for his own benefit or the achievement of his own goals which falls
outside the course and scope of his employment.
(Viljoen v Smith
1997(1) SA 309 (A) at 315 F-G.) A master is not responsible for
the private and personal acts of his servant, unconnected with the
latter's employment, even if done during the time of his employment
and with the permission of the employer. The act causing damage
must
have been done by the servant in his capacity
qua
servant and
not as an independent individual. (See for example
Feldman (Pty)
Ltd v Mall,
1945 AD 733
at 742 and
H.K. Manufacturing
Co
(Pty) Ltd v Sadowitz
1965 (3) SA 328
(C) at 336 A.)
The test in this latter regard was
formulated by Jansen JA in
Minister of Police v Robie
(supra)
at 134 D-E 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
reference
is to be made to the servant's intention (
cf
Estate
van der Byl v Swanepoel
1927 AO 141 at 150). The test is in this
regard subjective. On the other hand, if there is nevertheless a
sufficiently close link
between the servant's act for his own
interests and purposes and the business of his master, the master may
yet be liable. This
is an objective test. And it may be useful to add
that according to the
Salmond
test (cited by Greenberg JA in
Feldman (Pty) Ltd v
Mall
1945 AD 733
at 774).
‘a master…..is liable even for
acts which he has not authorized provided that they are so connected
with acts which
he has authorized that they may rightly be regarded
as modes - although improper modes - of doing them…..' "
Tindall JA put the matter as
follows in the
locus classicus,
on the vicarious liability of
an employer for the deeds of an employee, in
Feldman (Pty) Ltd
v
Mall,
supra at 756 - 757:
"In my view the test to be applied is
whether the circumstances of the particular case show that the
servant's digression is
so great in respect of space and time that it
cannot reasonably be held that he is still exercising the functions
to which he was
appointed: if this is the case the master is not
liable. It seems to me not practicable to formulate the test in more
precise terms;
I can see no escape from the conclusion that
ultimately the question resolves itself into one of degree and in
each particular
case the matter of degree will determine whether the
servant can be said to have ceased to exercise the functions to which
he was
appointed."(See also the remarks of Walenneyer CJ at 742
and Davis AJA at 784).
The effect of the "two tier
test", as postulated by Jansen JA, is that an employer will only
escape liability if his employee
had the subjective intention of
promoting solely his own interests and that the employee. objectively
speaking, completely disassociated
himself from the affairs of his
employer when committing the act.
The nature and extent of the
deviation is a critical factor. Once the deviation is such that it
cannot reasonably be held that the
employee is still exercising the
functions to which he was appointed. or still carrying out some
instruction of his employer, the
latter will cease to be liable.
Whether that stage has been reached is essentially a question of fact
(see for example
Feldman (Pty) Ltd v Mall
(supra) at 756-7;
Union Government v Hawkins
19
44 AD 556
at 563:
Vijoen v
Smith,
(supra) at 316 E - 317A)·. 111c answer in each case
will depend upon a close examination of the facts. ll1e same is true
of the enquiry as to whether the deviation has ceased and the
employee has resumed the business of his employer."
[9]
It is common cause that Seloane unlawfully shot the plaintiff, with a
singular purpose
and intent to kill her;
vide
Minister of Police v Rabie
[9]
.
It is also
common cause that he was on his own frolic, when he committed his
dastardly act. It then requires of the court to determine
on
objective basis, whether the defendant was vicariously liable under
the circumstances;
vide
K v Minister of Safety
&
Security (supra)
at para [32]. As
stated in
Minister
of Safety and Security v Booysen
[2016]
ZASCA 201:
"The question remains in this case whether there is a
sufficient link between the conduct of Seloana and
his employment to impose vicarious liability on the Defendant.
"That question can only be answered by considering the
normative
factors referred to earlier, and countervailing factors, this
conducting a balancing act."
vide
Booysen
matter
{supra)
at
para 19.
[10]
The
normative factors to be considered, as stated in
F
v Minister of Safety and Security
[10]
:
"The normative components that
point to liability must, as K indicated, be expressly stated. They
are the state's constitutional
obligations to protect the public;
trust that the public is entitled to place in the policeman, the
significance, if any, of the
policeman having been off duty and on
standby duty, the role
of ..."(in
casu
Sebiloane of the simultaneous
shooting of the plaintiff and the other gentleman he suspected to
be romantically
involved with the
plaintiff) "...and omission to protect the victim, and the
existence or otherwise of an
intimate link between the policeman's
conduct and his employment. All these factors complement one another
in determining the state's
vicarious liability in this matter."
[11]
In this regard it is instructive to look
at the evidence of,
inter alia:
11.1
the plaintiff who testified that:
When Sebiloane shot her with six
bullets she fell and he looked at her and asked her whether she was
still alive. She asked him
why he was doing this to her.
He
shot her again with one bullet.
He
said that "they" wanted to separate him with her. He lifted
her and put her at the back of his car and took her to
the hospital.
He used his work firearm when he shot her. She did not believe that
he would shoot her, because he is a policeman;
people who protect
community. He fell in love with him as a police officer, because
police are respected in the community and she
would have security and
also the dignity. By shooting her he was not protecting her;
11.2
Mr. Kongotela Raymond
Mabasa
testified on behalf of the plaintiff, that he is employed with the
Independent Directorate which unit investigates alleged
crimes
committed by members of the police force. He was the investigating
officer in this matter. He discovered through his investigation
that
Sebiloane fired several gun shots of which four were directed to the
plaintiff. Sebiloane was in the employ of the SAPS and
he used the
police firearm. During the investigation it was discovered that he
was not competent to possess and be issued with
a firearm. They
looked for his competence certificate to no avail. During his
investigation he called for a certificate and found
that a competent
certificate was not issued but a temporary one, which was
issued to Sebiloane by Captain Khoele who was
not competent to do so
in terms of Regulation 79. A competency certificate must be obtained
annually and the Sebiloane was in conflict
with this provision and
violated this law. Section 48 indicates that a member is not entitled
to be issued with a firearm, when
he is off duty.
11.3
Captain Khoele the only witness for the
defendant, testified that,
inter
alia,
he was in the same unit with
Sebilaone as they worked together. I le conceded that Scbiloane was,
prior to the shooting incident
in
casu,
internally disciplined for
misconduct that he shot a person with his firearm with 25 rounds. He
further testified that Sebiloane
did not make an application to
possess the firearm while he was off duty.
[12]
Section
77 of the Regulation provides that the permit issued under section 98
of the Act must provide,
inter alia,
"(1)(f) information whether the
employee has been authorised to
(i)
have the firearm in his or her
possession after working hours;
(ii)
carry the firearm on his or her person
outside his or her workplace in compliance with the with the
requirements of section 84 of
the Act;".
[13] The
evidence of both Mabasa and Khoele concerning that Sebiloane was not
authorised to carry his firearm
when he was off duty, was not
disputed. If he was, the
onus
of proving such
authorization rested on Sebiloane, but failed to discharge same. In
the circumstances I find that he was not duly
authorised to carry his
firearm while off duty.
[14]
Sebiloane, as a member of the defendant,
has a constitutional duty to protect all and sundry at all times.
That duty flows from
the constitutional imperatives of the defendant
to protect the general public, through the police force. That duty
comes with obligations,
(a) to provide members of the police force
with firearms, (b) to ensure compliance with the prescripts of the
law on the part of
its members; (c) to withdraw the issued firearm to
its members if circumstances dictate,
inter
alia.
[15]
In casu,
there
was an omission on the part of the defendant, in not ensuring that
Sebiloane surrendered his firearm when he went off duty
on that
unfortunate day of the shooting.
[16] There
is also evidence that Sebiloane was internally disciplined for
shooting someone with 25 rounds.
Section 79 (2) (b)(ii) of the
Regulation 2004 provides that the official institution which provides
firearm of the employee undergoes
psychological debriefing within 48
hours after experiencing any violent incident, discharging their
firearm or witnessing a shooting.
The defendant did not place any
evidence to show that Sebiloane underwent such psychological
debriefing after that 25 round shooting
incident, which occurred
prior to the shooting of the plaintiff.
[17]
In my view, the fact that the defendant was aware of the character
and or disposition of Sebilaone,
demanded that strict compliance on
the part of Sebiloane, in the handling of firearms, such as handling
his firearm when off duty.
The defendant bore the
onus
of proving that
Sebiloane has undergone all necessary competency requirements and is
also compliant with the necessary prescripts.
In my view there was
omission on the part of the defendant on its constitutional
imperatives, to ensure that when Sebiloane is
allowed to possess a
firearm, the public is safe.
[18]
I the matter of McIntosh v Premier, KwaZulu-Natal and Another
[11]
where the Supreme Court of Appeal held ,
inter
alia,
that:
"[12] As is apparent from the much-quoted
dictum of Holmes JA in Kruger v Coetzee1966 (2) SA 428 (A) at 430E -
F, the issue
of negligence itself involves a twofold inquiry. The
first is: was the harm reasonably foreseeable? The second is: would
the
diligens
paterfamilias
take reasonable steps to guard against such occurrence and did the
defendant fail to take those steps? The answer
to the second inquiry
is frequently expressed in terms of a duty. The
foreseeability requirement is more often
than not assumed and the
inquiry is said to be simply whether the defendant had a duty to take
one or other step, such as... perform
some or other act, positive
act, and if so, whether the failure on the part of the defendant to
do so amounted to a breach
of that duty." This
requires a value judgment, as I do, that a reasonable man, would have
foreseen that Sebiloane, having
recently fired 25 rounds at a person,
without having undergone a psychological debridement, presented a
danger to society, must
be reined in to hand his firearm when off
duty, failing which he might cause harm to innocent persons. The
defendant omitted in
ensuring that Sebiloane hands in his firearm
when off duty, as such was negligent and accordingly liable to the
plaintiff as the
result of the relevant shooting incident
in
casu; vide McIntosh v Premier, KwaZulu-Natal and Another.
[12]
[19]
It is trite that costs follow the event.
In casu,
both
parties engaged the services of two counsel, justifiable so, regard
being had to the fine point of law and the quantum involved.
[20]
In the result the following order is
hereby issued:
1.
That
the defendant is liable to compensate the plaintiff such proven
damages;
2.
That
the defendant pays the plaintiff's taxed or agreed costs, such costs
to include the costs of two counsel.
N.M.
MAVUNDLA
JUDGE
OF THE COURT
DATE
OF JUDGEMENT :
15/01/2020
PALINTIFF'S
ADV
:
ADV. MPHE SC
WITH
:
ADV GDM DUBE
INSTRUCTED
BY
:
MAOBA
ATTORNEYS INC .
RESPONDETS'
ADV :
ADV.
P.J.J. DE JAGGER S. C
INSTRUCTED
BY
:
STATE
ATTORNEYS
[1]
1986 (1) SA 117 (A);
[2]
2005 (6) SA 419 (CC).
[3]
2012 (1) SA 536
(CC) at [40)-(49);
[4]
[2018]
ZACC 18.
[5]
ZASCA 26 (28 March 2019 Case no 273/2018 [2019].
[6]
1986 (1) SA 117
(A) at 134C.
[7]
[2005] ZACC 8
;
2005 (6) SA 419
CC.
[8]
(2001) 1 ALL SA (1) (A) 1
[9]
(supra) at para 134C-D.
[10]
2012 (1) SA 536
CC at para 52.
[11]
2008 (6) SA 1
(SCA) at page 8H
[12]
supra at par (14).