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[2019] ZAFSHC 192
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Motsitsi v Minister of Police and Others (5099/2018) [2019] ZAFSHC 192 (24 October 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 5099/2018
In
the matter between:
ELIZA
MOTSITSI
Plaintiff
and
MINISTER
OF
POLICE
1
st
Defendant
NATIONAL
COMMISSIONER OF
SOUTH
AFRICAN POLICE
SERVICES
2
nd
Defendant
PROVINCIAL
COMMISSIONER OF
SOUTH
AFRICAN POLICE SERVICES,
FREE
STATE
3
rd
Defendant
HEARD
ON: 3 SEPTEMBER and 11 OCTOBER 2019
JUDGMENT
BY: LOUBSER, J
DELIVERED
ON: 24 OCTOBER 2019
[1]
The Plaintiff in this action is a female aged 31 years who is
claiming an amount of R 10 million damages from the Defendants
following an incident where she was wounded by an off-duty policeman
using his service firearm. He shot and killed himself thereafter.
By
prior agreement between the parties, the matter came before this
Court on the merits of the Plaintiffs claim only, the quantum
of her
claim having stood down for later determination.
[2]
At the inception of the proceedings before me on 3 September 20191
the parties reached agreement on the facts of the matter,
and a
written Statement of Agreed Facts, duly signed by the respective
attorneys representing the parties, was subsequently presented
to the
Court in terms of the provisions of Court Rule 33(6).
[3]
This Statement reads as follows:
"2. Now the
parties agree herewith that the following constitutes the statement
of agreed facts:
2.1
That
the Plaintiff was shot by
a
member of the African Police
Service (SAPS) to wit, Constable Kabelo Die (Die).
2.2
At
the time of the said shooting, Die was off-duty and he used his state
issued firearm to shoot the Plaintiff.
2.3
Further
in respect of paragraphs 4.2 to 4.5 of the Plaintiffs Particulars of
Claim that:
2.3.1
At
the time of the said incident, Die went to the Plaintiffs place of
abode as alluded herein above and requested the Plaintiff
to come
outside, which the Plaintiff did.
2.3.2
Die
asked the Plaintiff as to why the Plaintiff did not tell him that
Sarah (Die's girlfriend) was having affairs with other men.
2.3.3
The
Plaintiff informed Die that she did not want
to
be involved in
Sarah's issues as Sarah was not even staying with her at the Township
and that she (Sarah) was staying in town.
2.3.4
Die
without further ado took out his service pistol and started firing
shots towards the Plaintiff who sustained injuries.
2.4
The Plaintiff was a cousin of Sarah (the deceased Die's
girlfriend)
2.5
There was no romantic relationship between the Plaintiff and
Constable Die.
2.6
The Plaintiff knew Constable Die as
a
policeman.
2.7
This is a deviation case because in so shooting the Plaintiff,
Die was not acting within the course and scope of his employment with
the Minister of Police.
2.8
The parties further agree that the only issue to be determined
by the Court is whether the First Defendant can be held vicariously
liable for the conduct of Constable Die.
2.9
The parties further agree that they will argue on the question
as to whether there was an issue of trust which existed between the
Plaintiff and Die at the time of the shooting incident on the basis
of the above agreed facts."
[4]
In presenting final submissions to the Court on 11 October 2019,
counsel for the Plaintiff Mr. Bahlekazi, pointed out that the
Police
Service had contravened its own Standing Order relating to the issue
of official firearms and ammunition when it issued
the firearm in
question to Constable Die. This is one of the reasons why the Court
should find the Minister liable, the argument
went. Mr. Bahlekazi
even went so far as to attach a copy of the relevant Standing Order
to his heads of argument to substantiate
his argument.
[5]
The issue of non-compliance by the Police Service of its own Standing
Order in this respect, is however not alleged in the Plaintiff's
Particulars of Claim, nor has any evidence been presented by the
Plaintiff as far as the Standing Order or the non compliance
thereof is concerned. Even worse for the Plaintiff, this issue is
nowhere referred to in the Statement of Agreed Effects at all.
I
therefore have to find that the Court need not consider this specific
point.
[6]
What the Court does need to consider, however. is whether the First
Defendant can be held liable on the ground of trust displayed
by the
Plaintiff, which ground has its origins in the constitutional duty of
the Police to protect the Plaintiff and not to injure
her. Mr.
Bahlekazi submitted that the Plaintiff had clearly placed her trust
in Constable Die by coming out to him when he called
her, and on that
basis the First Defendant has to be held liable for the damages she
sustained. This is, of course, in the absence
of any notion that Die
was acting within the course and scope of his employment with the
First Defendant. If she had contemplated
the possibility of the
policeman injuring her, she would not have come to Die, so the
argument went. The parties have agreed that
they would argue this
issue of trust in paragraph 2.9 of the Statement of Agreed Facts, and
therefore Mr. Bahlekazi was fully entitled
to canvas this aspect when
he made final submissions.
[7]
As agreed
between the parties. the issue at hand is the vicarious liability of
the First Defendant for the conduct of his servants
who have deviated
from the course and scope of their employment. The test for vicarious
liability in deviation cases was initially
stated by the Court of
Appeal in, amongst others, the case of
Minister
of Police v Rabie
[1]
.
More recently, the test has been developed and refined by the highest
court in our country. namely the Constitutional Court, to
align it
with the spirit, purport and object of our new Constitution.
[8]
In the
Rabie-case,
it was stated that an act done by a
servant solely for his own interest and purposes, although occasioned
by his employment1 may
fall outside the course and scope of his
employment. In deciding this question, some reference is to be made
to the servant's intention.
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...”
[2]
[9]
The
Constitutional Court confirmed the test enunciated in Rabie, but
developed the second and objective leg of the test in the cases
of
K
v Minister of Safety and Security
[3]
and
F v
Minister of Safety and Security
[4]
.
In
K
the
Court held as follows per O'Regan, J:
"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 the constitutional
norms but other
norms as well. It requires
a
court
when applying it to articulate its reasoning for its conclusion 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"
[5]
[10]
In
F
the
Court found that the second leg of the test does not raise purely
factual questions but mixed questions of fact and law. The
Court
stated that the state's constitutional obligations to protect the
public, the trust that the public is entitled to place
in the police
and a policeman's own omission to protect the victim are some of the
elements complementing one another in determining
the state's
vicarious liability in a matter.
[6]
[11]
Applying the test thus stated by the Constitutional Court, the
Supreme Court of Appeal summarized the approach to be adopted
by a
court as follows:
"The question
remains whether in this case there is
a
sufficient
link between the deceased's conduct and his employment to impose
vicarious liability on the minister. That question can
only be
answered by considering the normative factors referred to earlier,
and the countervailing factors, thus conducting a balancing
act"
[7]
[12]
The practical application of the test emerges from a number of
decisions, including the cases of
K
and
F
quoted above.
In both these cases the victims were young women who were stranded
without transport in the middle of the night and
offered a lift by
policemen who were on duty in police vehicles. They were both raped
by the policemen in the respective incidents.
In both cases the
Minister was held vicariously liable on the basis of the trust which
the public is entitled to place in the police.
It weighed heavily
with the Court that. in both cases. an innocent citizen in distress
had reposed her trust in the police as she
was entitled to do, and
that the policemen had breached that trust. That created a
sufficiently close connection between the delictual
conduct and the
employment, the Court found.
[13]
In the
Booysen
case (footnote 7) the complainant and
the police reservist on duty were involved in an intimate
relationship for some six months.
On the day of the incident, he
visited the home of Ms. Booysen to have supper with her whilst on
duty. After they had supper, the
two of them sat outside. Suddenly,
and without any warning, the policeman drew his service pistol and
shot Ms. Booysen in the face
and then committed suicide by shooting
himself too. Applying these facts to the test in
K,
the Court
found that the answer to the first question, which is subjective, is
that liability was not established. The policeman
was on a private
visit to his lover's home, and he was not there as a police officer.
As far as the second leg of the test was
concerned, the court found
that the link between the delictual conduct of the policeman and the
business of the employer was missing,
because of the absence of the
element of trust. It would not have made any difference had the
policeman arrived in his private
vehicle and wearing civilian
clothes, the Court opined.
[14]
In the
recent case of
Minister
of Safety and Security v Kholeka Msi
[8]
the policeman concerned was officially on duty and dressed in full
uniform. While so on duty, he was summoned to a private meeting
with
Ms. Msi and his own brother, Madala. At this meeting, Ms. Msi, who
had previously been in a lengthy intimate relationship
with the
policeman, raised an alleged illicit affair between the girlfriend of
Madala and the policeman for discussion. This elicited
an angry
response from the policeman who proceeded to assault Ms. Msi with a
clenched fist and with his police handcuffs. Ms. Msi
then instituted
action against the Minister on the basis of vicarious liability. The
trial court found in her favour, but on appeal
the court's finding
was overturned.
[15]
The Supreme Court of Appeal found that the first question of the
test, which is subjective, did not establish liability for
the
Minister, since the policeman's attendance at the meeting was purely
for his own purposes. As concerns the second leg of the
inquiry, the
Court found that Ms. Msi had not placed her trust in the policeman by
virtue of him being a policeman. From where
she stood, he was not a
policeman employed to protect her but rather an old friend who was
called to the meeting. As a consequence.
the Court found that there
was not a sufficiently close connection between the business of the
SAPS and the conduct of the policeman
to justify the imposition of
vicarious liability.
[16]
I now turn to the facts of the present case. Mr Bahlekazi, appearing
for the Plaintiff, urged the Court to hold the Defendant
vicariously
liable on the basis of the trust displayed by the Plaintiff in Die.
She had known him to be a policeman, and therefore
she was willing to
come out of her house when he called her. because she trusted him as
a policeman not to harm her but to protect
her. In making these
submissions, Mr. Bahlekazi obviously relied on the judgements
referred to earlier herein. It is also obvious
that the first
question of the inquiry does not call for determination, since Die
was on a private mission when he approached the
Plaintiff.
[17]
The first problem I have with the submissions so made, is that they
are not supported by any evidence to that effect, nor by
the
Statement of Agreed facts, nor by the facts alleged in the
Particulars of Claim. It is therefore pure speculation to allege
that
the Plaintiff had placed her trust in Die1 and nothing more. There is
simply nothing to suggest that the Plaintiff would not
have come
outside if she had been called by anyone else who was not a member of
the Police. To put it differently, they are no
grounds for suggesting
that the Plaintiff only came outside because she was called by
someone she knew as a policeman. On the overwhelming
probabilities of
the case, she would have come outside in any event had she been
called by anyone else she knew. I therefore have
to find that the
element of trust in the police played no role in the incident that
took place on the day in question.
[18]
Secondly, Die did not approach the Plaintiff in his capacity as a
policeman at all. He only wanted to discuss private issues
with the
Plaintiff in his capacity as her friend's boyfriend. So much is clear
from the Statement of Agreed Facts
[19]
Thirdly, the Plaintiff did not find herself in the position of a
woman who was in desperate need of police protection, and
consequently reposed her trust in Die as a policeman, as was the case
of the victims in the
K
and
F
cases. Here we are only
dealing with an unfortunate domestic incident, as the Court has also
found in the
Booysen
case.
[20]
For these reasons I find that there is not a sufficiently close
connection between the business of the SAPS and the conduct
of Die to
justify the imposition of vicarious liability. The following order is
therefore made:
1. The Plaintiff's claim
is dismissed with costs, including the costs incurred on 3 September
2019.
_________________
P.J.
LOUBSER, J
For
the Plaintiff:
Adv. N.M Bahlekazi
Instructed
by:
Maoba Attorneys Inc., Ficksburg
c/o
Booysen and Fourie Inc
Bloemfontein
For
the Defendant:
Adv. G. J. M Wright
Instructed
by:
Office of The State Attorney
Bloemfontein
[1]
1986 (1) SA 117
(A)
[2]
At 134 C E
[3]
2005 (6) SA 419 (CC)
[4]
2012 (1) SA 536 (CC)
[5]
At par. 44
[6]
At par. 52
[7]
Minister of Safety and Security v Booysen
(2016) ZASCA 201
at par.
19
[8]
(2019) ZASCA 26