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[2019] ZAMPMBHC 5
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Nkuna v Minister of Police (15/10/2019) [2019] ZAMPMBHC 5; RATSHIBVUMO AJ (16 October 2019)
THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
CASE
NO: 627 / 2018
In
the matter between:
SYDNEY
NKUNA PLAINTIFF
and
MINISTER
OF
POLICE
DEFENDANT
Summary:
Civil
law – Delict – Vicarious liability. Deviation by employee
from the scope of employment. Requirements for vicarious
liability in
deviation cases: Whether employee acts in interests of employer or
his own and whether sufficient close link exists
between the conduct
and the business of employment.
An
off duty police officer involved in a road rage argument that ends in
him shooting and injuring the Plaintiff. Police officer
not in
uniform and not in marked police motor vehicle and the argument
having nothing to do with him executing the scope of his
employment.
Held
– that he acted in his own interests and that there is no
sufficient close link between his conduct and the business
of his
employment.
J U D G M E N T
RATSHIBVUMO AJ:
1.
Introduction.
This
is a claim for damages emanating from the unlawful assault by a
member of the South African Police Services (SAPS) on the person
of
the Plaintiff. The Plaintiff’s claim against the Defendant is
based on vicariously liability over delict committed by
its employee.
Pursuant to an agreement reached at the Rule 37 pre-trial conference,
the parties requested that the trial should
proceed in respect of the
merits only and that the quantum should stand over for determination
at a later stage; a request acceded
to by the court.
[1]
Accordingly, trial proceeded only in respect of defendant’s
liability.
2.
Following a road rage incident one Friday evening, in December 2013,
two motorists stopped on the side of the road to settle
their scores
face to face. Bolstered by the presence of his younger brother who
joined him when he stepped out of the motor vehicle,
the Plaintiff
must have felt stronger and ready to confront the motorist who
overtook him from his left on a yellow lane driving
a red VW Golf.
The Plaintiff perceived that to be reckless driving especially when
after overtaking him, the Golf was driven very
slowly in front of him
forcing him to also overtake the Golf. Moments later, the two
motorists stopped and it was the Plaintiff
who approached the Golf
driver away from his brand new VW Polo motor vehicle. The production
of a firearm by the Golf driver sent
the two brothers rushing back
into their motor vehicle to continue the ride in a new car full of
the Plaintiff’s friends
and his brother. That however did not
stop the Golf driver from firing shots even as the Polo was driven
away, causing an injury
to the Plaintiff on the back of his neck. The
Plaintiff was treated at a hospital where he was discharged about a
week later.
3.Although
the red Golf and its driver were unknown to the Plaintiff –
after all it was at night; their verbal confrontation
made the
Plaintiff to have a clue that the Golf motorist must have been a
police officer. For according to the Plaintiff, he shouted
that “I
am a police officer”. Further inquiries about a police officer
who drives a red VW Golf led Plaintiff’s
investigations to
Const. Theledi, a police officer attached to Graskop Police Station,
some 90 km or so away from the shooting
scene. As the information
tricked in, it was rumoured that at Graskop Police Station there was
a police officer who drove a red
VW Golf. Sadly, as the detectives
followed up that lead, the visitation by the police investigators to
his home on Monday following
the date of the incident proved to be
tragic. While waiting for the gate to be opened, officers heard a
gunshot sound inside the
house and when they entered; they found
Const. Theledi lying motionless, dead – with a gunshot wound.
4.
There is no dispute that Const. Theledi was not on duty at the time
of the shooting incident and that the area where the shooting
took
place is outside the area of jurisdiction for which Const. Theledi
was appointed to work for the Defendant. Again, the man
who shot the
Plaintiff was not in police uniform or driving a marked police car.
5.
Issues for
determination.
Is it Const. Theledi who shot and injured the Plaintiff?
If it was, is the Defendant vicariously liable for his deeds?
6.
Case for the
Defendant:
Mr.
Sydney Nkuna:
He is
the Plaintiff. His evidence can be summarised as follows. He worked
for Transnet Freight Rail as a train assistant. On 06
December 2013
around 21h30 and on a public road in Mkhuhlu Trust or Calcutta in
Mpumalanga, he was driving in his new VW Polo motor
vehicle. He had
three passengers inside being his brother, Bekimuzi seated on front
passenger seat and two friends seated on the
back seat. Around that
time, his motor vehicle was overtaken by a red VW Golf motor vehicle
from his left side on a yellow lane
in a manner he considered to be
reckless. The said VW Golf then proceeded to be driven in front of
him very slowly until he overtook
it. It was again driven to overtake
him on his left side on yellow lane and proceeded to be driven slowly
in front of him. He decided
to overtake it again but this time, when
the motor vehicles were parallel to each other, he rolled down his
front left window and
confronted the driver of the VW Golf over his
manner of driving. In response, the VW Golf driver insulted him. The
motor vehicles
continued driving very slowly until they stopped,
after the VW Golf was driven so as to block his way.
7.Once
the two motor vehicles stopped, he and Bekimuzi got out to confront
the VW Golf driver asking why he drove in that manner.
The Golf
driver insulted him, alighted from his motor vehicle and went to its
boot and when he turned, he was armed with a firearm
and with it he
fired a shot towards Bekimuzi. He also instructed Bekimuzi to get in
the car saying he would die young, and Bekimuzi
obliged. The VW Golf
driver then turned to the Plaintiff and told him, “we are busy
working; I am a police officer and you
cannot do anything.”
Frightened, the Plaintiff got into his motor vehicle and started to
drive. He heard more shots being
fired as he drove away. Moments
later, he realised he was shot at the back of his neck. He then asked
Bekimuzi to drive him to
the hospital which he did. He was treated
and discharge about 8 days later. The bullet was not removed and it
remains lodged inside
his neck.
8.
Unlike what was
reflected in his particulars of claim prior to their amendment, the
VW Golf driver was not in police uniform. He
does not know why the
initial particulars of claim contained those allegations because that
is not what he told his attorney. Again,
the VW Golf motor vehicle
was not a marked police car and it did not have blue lights.
9.
Madzuma Sipho Nkuna
:
He is the Plaintiff’s brother. He received the news of the
incident in which the Plaintiff was injured through a phone call
from
Bekimuzi and he proceeded to visit the Plaintiff in hospital. From
the hospital he went about investigating the matter and
putting
pressure on the authorities to investigate and arrest the person who
injured the Plaintiff. His first mission was to confirm
with Calcutta
Police Station which services the area where the incident took place,
that a case docket was opened and if so, he
wanted to talk to the
Investigating Officer. He proceeded there on 07 December 2013. At the
police station, they told him that
the Investigating Officer was not
in. He then proceeded to visit the scene of shooting together with
Bekimuzi and there, he found
three empty cartridges. That surprised
him because he had been told that the police visited the scene
already. He took the empty
cartridges to the police station where he
handed them over and left.
10.
He went back to the
police station and this time, he told them that he had information to
the effect that the suspect was a police
officer. He suspected that
it could be an officer who works at Calcutta Police Station named
Dalton; for he also drove a red VW
Golf. When the word reached Dalton
that he was being suspected, Dalton assured him that it was not him
since he was on duty elsewhere
when the incident happened. He
testified that he proceeded to demand answers and arrest of the
suspect, and in that process he
got information from some of the
officers present at the police station that the right suspect was a
certain Const. Theledi attached
to Graskop Police Station. With lack
of trust and suspicion that the police were not hands on, he
contacted the provincial police
who got involved. He was called to
the police station on Monday the 9
th
December 2013 and was informed by a certain Capt. Maphanga that
Theledi committed suicide.
11.
Case for the
Defendant:
Thulani
Maphanga
: He is a
member of the SAPS and he holds a rank of a Lieutenant Colonel. At
the time of the incident, he was the station commander
at Graskop
Police Station and Const. Theledi served under his command. He
testified that Const Theledi was a well-disciplined member
of the
SAPS against whom there were no criminal records. He also had a clean
record internally as he had not been found guilty
of any misconduct.
He was alerted of the investigations launched against Const. Theledi
when the police officers from Calcutta
came looking for him over the
weekend. These officers told him they wanted to confiscate Const.
Theledi’s firearm and send
it for ballistic tests. He was not
given further details.
12.
Const. Theledi was a
detective who did not work over the weekends. He told the officers
who came looking for Const. Theledi to come
back on Monday the 9
th
December 2013. He had hoped to find him during the morning parade. On
Monday the 9
th
December 2013, Const. Theledi was not present at work. He then led
these officers to Const. Theledi’s residence. Once there,
a
lady came to open the gate and at that stage, he heard a sound of a
gun shot from Const. Theledi’s house. When they got
in, they
found Const. Theledi dead, bleeding from a gunshot wound.
13.
Const. Theledi had been
issued with a firearm that is issued to permanent members of the SAPS
when they join the police. He did
not have to hand it in and out when
he was on and off duty since it was issued to him in terms of what he
termed SAPS 108. Firearms
issued this way become a property of the
said officer even if he/she gets transferred to another police
station, hence they always
require that officers should have a safe
at their respective homes before they are issued with firearms.
14.
He testified further
that Const. Theledi was not on duty or on stand-by at the time of the
incident. If Const. Theledi had some
duties to perform in Calcutta,
he would have known because since it was outside his jurisdictional
area for which he was appointed;
Const. Theledi had to apply from him
as the Station Commander to get authorisation to perform the duties
there. Const. Theledi
did not apply for this authorisation and as
such, he did not have it.
15.
Ellemius Luki
Mashego
: He is a
retired member of the SAPS. In 2013 he held a rank of a Captain and
he was a Group Leader in investigations at Calcutta
Police Station.
He became aware of the docket opened in respect of attempted murder
relating to the Plaintiff on Saturday the 6
th
December 2013. The docket was opened by Sgt Matseo. To his knowledge,
there is no statement made by a person named Theledi at Calcutta
Police Station in respect of this case, or there was, it was not
contained in this investigation docket. Although he gave instructions
to the investigating officer to take the firearm confiscated after
the death of Const. Theledi, to be taken along with the cartridges
for ballistic tests, no ballistic test results were in the docket and
he could not explain why. The ballistic test results in respect
of
the firearm used in the killing of Theledi were however available in
the inquest docket. He confirmed that he went with Lt Col
Maphanga to
Theledi’s residence where he was found dead.
16.
Applicable law.
It
appears convenient to me to first deal with the question of vicarious
liability under the presumption that it was Const. Theledi
who shot
and injured the Plaintiff. I will however revert to the aspect of the
identity later in the judgment. Given the common
facts under
introduction above, it is clear that this incident did not take place
while Const. Theledi was furthering the scope
of his employment. The
closest it can be aligned to is deviation. Deviation refers to a
delict committed in circumstances where
an employee has deviated from
the normal performance of his/her duties.
[2]
17.
The test as to whether
to impose vicarious liability in deviation cases was recently visited
by the Constitutional Court in
Booysen
v Minister of Safety and Security
.
[3]
The history of deviation can be traced back to
Minister
of Police v Rabie
[4]
and was later
expanded in
K v
Minister of Safety and Security
[5]
and in
F v Minister
of Safety and Security.
[6]
In
Rabie
,
the Appellate Division held (per Jansen JA writing for the majority)
that,
“
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 AD 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
acts for his own interests and purposes and the business of his
master, the master may yet be liable.
This is an objective
test.”
[7]
18.
This test essentially
consists of two questions: first, whether the employee committed the
wrongful acts solely for his or her own
interests or those of the
employer (the subjective question); and second, if he or she was
acting for his or her own interests,
whether there was nevertheless a
“sufficiently close link” between the employee's
conduct and the business of
his employment (the objective
question).
[8]
19.
Sufficient close link
was expanded under the constitutional dispensation in
K
[9]
and
F
[10]
to allow holding the employer vicariously liable even though the
employees’ conduct was in pursuit of personal interests.
In
both these cases, the appellants were raped by police officers at
night in circumstances where they trusted the police to offer
help
and protection which they desperately needed. The police officers
pretended to offer that protection; and the victims’
trust was
earned because they were either in full police uniform and in marked
police motor vehicle or because of them professing
to be police
officers and the presence of the police docket in the motor vehicles.
20.
In
Minister
of Safety & Security
v Booysen
[11]
the Supreme Court
of Appeal had to consider if sufficient close link existed in a case
of a shooting incident involving a police
officer. Facts were briefly
as follows. The respondent and the deceased were involved in an
intimate relationship. The two had
known each other for many years.
The respondent confirmed that she fell in love with a private
individual and not a policeman.
At the time of the incident, they had
been in the relationship for less than a year. On 22 March 2013
the deceased was on
night-shift duty. He was dressed in his full
police uniform and armed with a service pistol. The pistol had been
issued to
him by the shift commander at the commencement of his
shift. He had been assigned crime-prevention duties and was required
to attend
to complaints by members of the public.
21.
That night, the
deceased was dropped off at the respondent's home by a marked
police vehicle. He had gone there to have dinner,
as was his routine
when he was on duty on Friday and Saturday nights. After he had
eaten, the police vehicle would collect him
and he would continue
with his shift duties. The deceased first went to buy soft drinks
from a nearby shop. On his return, he offered
these to the respondent
and her family. After supper, he and the respondent sat outside
together. Suddenly, and without warning,
the deceased drew his
service pistol and shot the respondent in the face. He then turned
the firearm on himself and committed suicide.
The last words uttered
by the deceased were to the effect that, if he could not have the
respondent, then nobody else could. The
respondent testified that she
and the deceased had not argued before the incident and they did not
have problems in their relationship.
As a consequence of the gunshot,
the respondent sustained injuries to her face. She was admitted in a
hospital where she was treated
and discharged.
22.
The trial court had
found the Minister of Safety and Security vicariously liable and it
had relied heavily on
Pehlani
v Minister of Police
.
[12]
In
Pehlani
,
the Western Cape Division (per Rogers J) had found the Minister of
Police vicariously liable in circumstances largely identical
to those
in
Booysen
.
Just as was in
Booysen
,
the police officer had shot a lover in a situation of “if I
cannot have you, nobody else will…”, in an area
outside
where she was posted to be on duty, using a police issued firearm and
she was in police uniform at the time.
23.
On appeal, the Supreme
Court of Appeal did not follow
Pehlani
.
In applying the “sufficient link” test, the SCA held that
the answer to the first question — whether the wrongful
act was
done solely for the purpose of the employee — did not
establish liability on the part of the employer because
the deceased
acted for his own interests. This conclusion was based on the
following:
a)
The deceased was on a
private visit to his lover's home, having gone there to have supper.
b)
He was not there in his
capacity as a police officer and he had no official police function
to perform.
c)
The visit was purely
social and at the time that he was permitted to be away from the
police station for a meal break.
d)
The break had nothing
to do with his employer any more than it would have had anything to
do with his employer's business if he had
been sitting having a
meal in a café or purchasing a takeaway at a fast-food
restaurant.
[13]
24.
With regard to the
second question — whether a sufficiently close link nonetheless
exists — the majority held that there
was not a
sufficiently close link between the employee's act for his own
interest and the purposes and business of the employer.
Its
conclusion was based on the following.
a)
When the shooting took
place, the applicant and the deceased were not relating to each other
as police officer and citizen but were
lovers in a domestic setting.
b)
The applicant confirmed
during her testimony that she and the deceased had no relationship
problems and had not argued before the
shooting. The shooting was not
foreseen either by the applicant or SAPS. There appeared to have been
no sign at all that the deceased
would have done what he did.
c)
The applicant did not
repose trust in the deceased due to his employment as a police
reservist with the SAPS.
d)
The applicant did not
fall in love with the deceased because he was a police officer.
e)
There was no situation
which called upon the deceased to act as a police officer at the
applicant's home.
f)
There was no evidence
that when the deceased was employed and issued with a firearm,
the management of the SAPS was aware or
should have been aware that
this created a material risk of harm to the community.
[14]
25.
Applying legal
principles to facts:
In
casu
, applying the
same test, I find that Theledi was not pursuing his employer’s
interests when he interacted with the Plaintiff.
This is because of
the following:
a)
He was not on duty when
he interacted with the Plaintiff.
b)
He was just a private
motorist on the road driving like any other road user.
c)
There is no evidence
suggesting he was driving his employer’s motor vehicle.
d)
He and the Plaintiff
did not know each other and nothing happened between them that could
have formed the basis for him to act in
the scope of his employment.
26.
On the second question
of the test: whether there exists sufficient close link I find in the
negative for the following reasons:
a)
Const. Theledi was not
in police uniform when he interacted with the Plaintiff.
b)
He was not driving a
police marked motor vehicle.
c)
He was unknown to the
Plaintiff, and as such the Plaintiff had no reason to suspect that he
was a police officer from his mannerism
and appearance.
d)
No trust relationship
existed between the Plaintiff and Theledi in terms of which the
Plaintiff could have expected Theledi to perform
his police
obligations expected of him by virtue of his employment as a police
officer.
[15]
e)
There is no evidence
suggesting that the police management was negligent in issuing Const.
Theledi with a firearm as there was no
evidence prior to the issuing
suggesting that he was dangerous or he could become dangerous if
issued with a firearm.
27.
The police issued
firearm.
It
was submitted on behalf of the Plaintiff that given the fact that
Theledi made use of police issued firearm, and the same was
not taken
back when he was off duty, in line with
Pehlani’s
approach, Const Theledi’s employer should be held vicariously
liable for the wrongful acts by Theledi using the same firearm.
In
supporting this view, counsel for the Plaintiff quoted section 98(5)
of the Firearms Control Act
[16]
which provides,
(5)
Unless the permit referred to in subsection (2) indicates
otherwise
, the employee must-
(a) when on duty, carry any handgun under his or
her control on his or her person in a prescribed holster;
(b) at the end of each period of his or her duty,
return the firearm in question to the place of storage designated for
this purpose
by the Official Institution; and
(c) when traveling with a firearm, carry the
firearm on his or her person or in a secure place under his or her
direct control.
(6) (a) Despite subsection (5), the head of an
Official Institution may authorise an employee to-
(i) have the firearm in his or her possession
after his or her working hours;
(ii) carry the firearm on his or her person
outside the premises of his or her workplace; or
(iii) store the firearm at his or her place of
residence. [My Emphasis].
28.
It appears the counsel
placed some emphasis on words contained towards the end of section
98(5) and ignored the first part altogether.
The plain language of
the legislation is that all the provisions about booking in and out
of firearms would apply “unless
the permit referred to in
subsection (2) indicates otherwise.” It is my understanding
that this entails that the head of
the institution and in this case,
the SAPS, is authorised to issue firearm permits in terms of section
98 (2) which would not require
firearms to be handed back when
officers report off duty; provided that such permit would contain
such stipulation. Section 98(2)
referred to provides,
“
(2) Only the head of an Official
Institution, or someone delegated in writing by him or her, may issue
a permit to an employee of
that Official Institution to possess and
use a firearm under its control.”
Section 98(7) & 98(8) further provide,
“
(7) The holder of a permit contemplated in
subsection (2) must carry that permit on his or her person when he or
she is in possession
of a firearm.
(8) The head of an Official Institution may only
issue a permit in terms of subsection (2) if the employee-
(a) is a fit and proper person to possess a
firearm; and
(b) has successfully completed the prescribed
training and the prescribed test for the safe use of a firearm.”
29.
Lt Col Maphanga
testified that firearms are issued under two different authorisation,
one being what counsel was reading from section
98(5) of the Firearms
Control Act in which officers are given firearms only when they are
on duty which are returned when they
are off duty; and another under
SAPS 108 which are the firearms given to police officers when they
get permanently appointed into
the SAPS. Under this authorisation,
police officers keep the firearms as theirs even when they get
transferred; hence they have
to acquire safes before they are issued
with these firearms – for they are expected to keep them in a
safe at their respective
homes.
30.
In
Booysen
and in
Pehlani
,
the courts dealt with police reservists who were issued with firearms
when on duty, which firearms had to be returned when off
duty. Thus
in
Pehlani
,
Rogers J was at liberty to critique how the authorisation was given
to a reservist under the spotlight of section 98(5) of the
Firearms
Control Act as it was the section applicable to the facts before him.
This case is different because it deals with the
firearms issued
under the provision… “unless the permit referred to in
subsection (2) indicates otherwise…”
which according to
Lt Col Maphanga, it refers to where a firearm was issued to a member
permanently.
31.
The argument to the
effect that the Minister created the risk in issuing Theledi with a
firearm was raised successfully in
Booysen
before the trial court. In reversing the decision of the trial court,
the SCA held that there was no evidence that when the deceased
was
employed and issued with a firearm, the management of the SAPS
was aware or should have been aware that this created a
material risk
of harm to the community. As observed by the Constitutional Court,
“there was no evidence that the deceased
was a danger by being
given a firearm. Consequently, the Supreme Court of Appeal overruled
Pehlani
to the extent that it imposed vicarious liability merely on the basis
that the SAPS had issued a firearm to a police officer who
subsequently committed a delict with it.”
[17]
32.
Equally, it cannot just
be assumed that the mere fact that Const. Theledi committed delict
with a State issued firearm, then it
means the issuing of the same
firearm to him was reckless. Evidence on record is that Const.
Theledi was a well-disciplined member
of the SAPS against whom there
was no misconduct or criminal record. How is the employer therefore
expected to have foreseen that
this man with a clean record was one
day going to use the firearm do commit delict?
33.
Was Theledi the
person who shot at the Plaintiff?
It
cannot be said that the Plaintiff was able to prove on balance of
probabilities that the person who shot at him was Const. Theledi
for
the following reasons: He did not know him prior to that date. They
were meeting for the first time at night and it was dark.
He was shot
by a motorist following a road rage or traffic intolerance incident.
Coincidentally, two police officers came up as
individuals who drive
red VW Golf motor vehicles. The car registration number plates of the
red VW Golf involved in this incident
remain unknown. Dalton’s
firearm was not excluded that it was not used in the incident. The
ballistic tests on Theledi’s
firearm and the cartridges
obtained from the shooting scene were not done or if they were, the
results were not made available
to this court.
34.
The police’s
investigations which appear to have been too slow and despite several
requests and instructions from Capt. Mashego
in the investigations
diary, no ballistic results were obtained. The Plaintiff not being a
police officer can only take this aspect
as far as a member of the
public can. However, for the reasons that even if this was
established and proved, Theledi’s employer
cannot be
vicariously held liable for his deeds; I see no reason to make a
finding regarding the identity of the a person who injured
the
Plaintiff.
35.
If follows therefore
that with the above, the Defendant cannot be held vicariously liable
for injuries that the Plaintiff sustained.
36.
Consequently, the
following order is made.
The
Plaintiff’s claim is dismissed with costs.
_____________________
TV
RATSHIBVUMO
ACTING
JUDGE OF THE HIGH COURT
FOR
THE PLAINTIFF: MR WP MENTJIES
INSTRUCTED
BY: MENTJIES & KHOZA ATTORNEYS
MBOMBELA
FOR
THE DEFENDANT: MR GK SLABBERT
INTRUSCTED
BY: FREY ATTORNEYS
MBOMBELA
DATE
HEARD: 17 SEPTEMBER 2019
JUDGMENT
DELIVERED: 15 OCTOBER 2019
[1]
See Rule 33 (4).
[2]
See BOTHA & MILLARD “The Past, Present
and Future of Vicarious Liability in South Africa” (2012) 2
De
Jure
225 at 231
[3]
2018 (2) SACR 607
(CC) para 11-21.
[4]
1986 (1) SA 117 (A).
[5]
2005 (6) SA 419 (CC).
[6]
2012 (1) SA 536 (CC)
[7]
Minister of Police v Rabie (Supra)
at
p. 134 C-E
[8]
Booysen v Minister of Safety and
Security(Supra)
at para 11.
[9]
Supra
[10]
Supra
[11]
(35/2016)
[2016] ZASCA 201
(9 December 2016).
[12]
(9105/2011)
[2014] ZAWCHC 146
; (2014) 35 ILJ 3316
(WCC) (25 September 2014).
[13]
See
Minister of Safety and Security v Booysen
(
Supra
)
at para 14.
[14]
See
Minister of Safety and Security v Booysen (Supra)
at para
18-19
[15]
See the “trust” element introduced to the test in
K
v Minister of Safety and Security
and
in
F v Minister of Safety and
Security(Supra).
[16]
No. 60 of 2000.
[17]
Booysen v Minister of Safety and Security (Supra)
at para 32.