Minister of Safety and Security v Luiters (213/05) [2006] ZASCA 11; 2006 (4) SA 160 (SCA) (17 March 2006)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2006
>>
[2006] ZASCA 11
|

|

Minister of Safety and Security v Luiters (213/05) [2006] ZASCA 11; 2006 (4) SA 160 (SCA) (17 March 2006)

Links to summary

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case no: 213/05
In the
matter between:
THE
MINISTER OF SAFETY AND SECURITY
Appellant
and
ALLISTER
ROY LUITERS
Respondent
_______________________________________________________
Coram
:
Mpati
DP, Farlam, Navsa, Cloete et Van Heerden JJA
Date of hearing:
7 March 2006
Date of delivery:
17 March 2006
Summary
: Off-duty policeman pursuing persons
who had attempted to rob him ─ whether appellant vicariously liable
for the shooting of an
innocent third party who was rendered a
tetraplegic ─ answer in the affirmative.
Neutral citation:
This judgment may be referred
to as
Minister of Safety and Security v Luiters
[2006] SCA 13
(RSA).
_______________________________________________________
JUDGMENT
_______________________________________________________
NAVSA JA
NAVSA JA:
[1] On the night of 14 October 1995, at Eerste River in
the Western Province, Constable Lionel Siljeur (Siljeur) fired his
service
pistol and struck the respondent, Mr Allister Roy Luiters
(Luiters), twice from behind, thereby rendering him a tetraplegic.
The
question for determination in this appeal is whether, at the
material time, Siljeur was acting within the course and scope of his
employment as a member of the South African Police Service.
[2] Luiters instituted action against the appellant, the
Minister of Safety and Security (the Minister) and Siljeur in the
Cape High
Court for damages sustained as a result of the shooting.
Shortly before the trial began, Luiters withdrew the action against
Siljeur
and proceeded only against the Minister. The remaining
parties were agreed, and the court below ruled, that the question of
the Minister’s
liability would be determined first and that the
other issues should stand over for later determination. Thring J, who
heard the
matter, had regard to the evidence of a material witness
who testified that he had been told by Siljeur (shortly after the
respondent
had been shot), that Siljeur was in pursuit of persons who
had attempted to rob him. He concluded that Siljeur had been going
about
police business at the time of the shooting and had therefore
acted within the course and scope of his employment. Thring J held
that the Minister was consequently vicariously liable and ordered him
to pay the costs of the hearing before him.
[3] It is against these conclusions that the appellant
appeals with the leave of the court below.
[4] It is common cause that, flowing from the events on
the night in question, Siljeur was convicted in the Parow Regional
Court,
on 24 August 1998, on eight counts of attempted
murder.
[5] It is necessary, at this stage, to consider the
material parts of the evidence adduced in the court below. Three
witnesses testified.
Mr William Richard Davidse (Davidse) was the
first. On the night in question, he was driving two friends in his
motor vehicle to
visit someone in Eerste River when they encountered
Siljeur in Jacaranda Street. Siljeur came running towards their
vehicle with
his service pistol in his hand. They stopped and asked
him what the problem was. He replied that someone had attempted to
rob him
and asked them whether they had seen where the robbers had
run to. He said he was looking for the robbers who had run into
premises
nearby, across the road from the house situated at 2
Jacaranda Street. Davidse asked Siljeur to lower the firearm which
had been
pointed at him for a considerable time. One of Davidse’s
friends, who had some knowledge of firearms, had told him, shortly
before
Siljeur spoke to them, that the gun he was brandishing was of
the kind used by members of the South African Police Service. Davidse
had been relieved when he heard this. According to Davidse, during
this initial approach, Siljeur ‘looked like he wanted to arrest
people’.
[6] Davidse testified that he had suggested to Siljeur
that he go home and, shortly thereafter, had seen the latter move
past the
back of the motor vehicle. Davidse and his friends travelled
a little further down Jacaranda Street and they saw Luiters lying in
a pool of blood. At the time he was unknown to them. In the vicinity
Davidse heard a woman screaming Luiters’ name hysterically.
The
woman was standing behind a fence on premises close to where Luiters
was lying. Davidse’s friends got out of the car to tend
to Luiters.
Almost immediately thereafter, Davidse heard gunfire. His friends
took cover as he drove a short distance down the street
with his
motor vehicle’s lights switched off.
[7] Davidse then drove back to where his friends were
and saw Siljeur walking down the middle of the street, shooting at
them. They
returned fire. Davidse stopped his motor vehicle where
Luiters lay in the street. Siljeur then disappeared.
[8] Luiters testified and described how he had been
shot. He was accompanied by two women on his way to 2 Jacaranda
Street, walking
in the opposite direction to that from which Davidse
later drove, to collect his motor vehicle from someone there who had
borrowed
it. As they entered Jacaranda Street, the women accompanying
him shouted that they should run. Whilst the three of them were
fleeing,
Luiters was struck by bullets from behind and fell in
Jacaranda Street. Luiters did not see who had shot him.
[9] The only witness who testified in support of the
Minister’s case was Captain Andre Steenkamp (Steenkamp), who at
that time,
was stationed at the Goodwood detective branch of the
South African Police Service. He was called to the scene on the night
in question
and found Luiters lying in the street. From information
he gathered from people in the vicinity, he determined that the
person who
had shot Luiters was a policeman. He described how he had
arrested Siljeur the following day and testified about the training
that
the police received in the use of firearms and about the reports
they had to file after discharging their firearms. Siljeur had not
filed such a report. Steenkamp testified further that the police
could only use their firearms in accordance with their standing
orders and the
Criminal Procedure Act 51 of 1977
. Steenkamp testified
that it was clear from Davidse’s evidence that Siljeur had used his
firearm in a manner contrary to the standing
orders and the said Act.
According to Steenkamp, when he first approached Siljeur, the latter
denied his own identity and that he
was a policeman. He also
initially refused to hand over his service firearm.
[10] It is common cause that Siljeur was officially
off-duty at the relevant time. As recorded in the judgment of the
court below,
Steenkamp conceded that a member of the South African
Police Service could, in terms of the police standing orders, at any
time place
himself on duty when an offence has been committed.
[11] A relevant standing order, to which Steenkamp was
referred, reads as follows:
‘
When a member is required to perform duties in a
neighbourhood or in circumstances perilous to life, he shall be
adequately armed
for self-preservation or the protection of life and
property. He must not, where necessary, hesitate to make use of his
arm.’
[12] That, then, was the material evidence on which the
court below was required to determine the question of the Minister’s
liability.
Siljeur was in attendance at the trial under subpoena from
Luiters. He was, however, not called to testify in support of the
latter’s
case. Siljeur was released as Luiters’ witness but the
Minister did not use the opportunity to call him as a witness.
[13] Determining, particularly in the case of the
misdeeds of members of the South African Police Service, whether the
Minister should
be held vicariously liable, has often presented
courts with the difficulty of where to draw the line in such terms so
as not to cause
future confusion and to ensure an orderly development
of our jurisprudence.
1
[14] In
K v Minister of Safety and Security
[2005] ZACC 8
;
2005
(6) SA 419
(CC), the Constitutional Court, in considering delicts
committed in the course of a deviation from the normal performance of
an employee’s
duties, had regard to common-law principles of
vicarious liability and cited
dicta
from this court’s
judgment in
Feldman (Pty) Ltd v Mall
1945 AD 733.
2
[15] In the
Feldman
case, Watermeyer CJ said the
following at 742:
‘
If an unfaithful servant, instead of devoting his
time to his master’s service, follows a pursuit of his own, a
variety of situations
may arise having different legal consequences.
(a) If he abandons his master’s work entirely in order
to devote his time to his own affairs then his master may or may not,
according
to the circumstances, be liable for harm which he causes to
third parties. If the servant’s abandonment of his master’s work
amounts to mismanagement of it or negligence in its performance and
is, in itself, the cause of harm to third parties, then the master
will naturally be legally responsible for that harm; there are
several English cases which illustrate this situation and I shall
presently refer to some of them. If, on the other hand, the harm to a
third party is not caused by the servant’s abandonment of
his
master’s work but by his activities in his own affairs, unconnected
with those of his master, then the master will not be responsible.
(b) If he does not abandon his master’s work entirely
but continues partially to do it and at the same time to devote his
attention
to his own affairs, then the master is legally responsible
for harm caused to a third party which may fairly, in a substantial
degree,
be attributed to an improper execution by the servant of his
master’s work, and not entirely to an improper management by the
servant
of his own affairs.’
[16] At 744 of the same judgment, Watermeyer CJ
continued:
‘
This qualification is necessary because the servant,
while on his frolic may at the same time be doing his master’s work
and also
because a servant’s indulgence in a frolic may in itself
constitute a neglect to perform his master’s work properly, and may
be the cause of the damage.’
[17] Tindall JA’s approach to the matter in the same
case (at 756-757) was also referred to by the Constitutional Court.
He said
the following:
‘
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 a matter
of degree will determine whether the servant can be
said to have ceased to exercise the functions to which he was
appointed.’
[18] In subsequent cases variations of the approach
suggested in these passages have been adopted and applied. In
Minister of Police v Rabie
1986 (1) SA 117
(A) at 134C-E, this
court formulated a test for determining vicarious liability which has
since been applied:
‘
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 . . . 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.’
3
[19] In the
K
case,
4
supra, the Constitutional Court stated that this approach made it
clear that there are two questions to be asked:
‘
The first 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 a
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 sufficiently
close link
between the employee’s acts for his own interests and
the purposes and the business of the employer. This question does not
raise
purely factual questions, but mixed questions of fact and law.
The questions of law it raises relate to what is “sufficiently
close”
to give rise to vicarious liability. It is in answering this
question that a court should consider the need to give effect to the
spirit, purport and objects of the Bill of Rights.’
[20] In order to address the first question it is
necessary to consider Siljeur’s state of mind at the relevant time.
Thring J considered
Siljeur’s statement to Davidse ─ that he was
looking for persons who had attempted to rob him ─ to be
spontaneous and contemporaneous
enough to warrant a conclusion that
it was indicative of his intention to perform police duties. The
admissibility of that statement
was not challenged on behalf of the
Minister ─ the inference drawn from the statement by the court
below is what is in contention.
The learned judge reasoned as
follows:
‘
Soos ek reeds gesê het, sy woorde is myns
insiens meer aanduidend van ‘n bedoeling aan sy kant om
polisiedienste uit te voer
as om hom met sy private belange, soos
byvoorbeeld wraak te bemoei. Dit is na my oordeel waarskynlik dat hy
op die eiser geskiet
het omdat hy hom as een van die rowers beskou
het, of as ‘n medepligtige van die rowers, en dat hy teen hom so
opgetree het sodat
hy hom kon aankeer en in hegtenis kon neem. Met
die aankoms van Davidse en sy twee passasiers, wat hy ook as
medepligtiges van die
rowers aangesien het, het hy egter dalk van
plan verander.’
[21] The court below concluded that Luiters had proved,
on a balance of probabilities, that Siljeur acted within the course
and scope
of his employment and that consequently, prima facie, the
Minister was liable. The court below said that the Minister could
only
avoid liability by showing that at the relevant time Siljeur was
acting outside the ambit of his employment.
5
In the absence of such countervailing evidence the court below held
the Minister liable.
[22] Counsel for the Minister submitted that Siljeur had
not been about police business and that this could be deduced from
the manner
in which he behaved at the material time. It was submitted
that he was acting in a bizarre manner ─ that he had run amok,
shooting
randomly and inexplicably and that this behaviour was not
that of a policeman in search of robbers. Thus it was submitted the
conclusion
that Siljeur had been acting in the course and scope of
his employment was not justified.
[23] In the present case there was a confluence between
Siljeur’s interest and those of the South African Police Service.
Although
he personally was subjected to an attempted robbery,
Siljeur, in approaching Davidse and his companions certainly appeared
to be
acting with the authority of a policeman. From the words he
uttered to them it was clear that his purpose was the pursuit of the
persons who had attempted to rob him. In pursuing the persons who had
attempted to rob him, he could hardly be unmindful of his authority
as a policeman. After all, he was using his service pistol.
[24] I do not agree with the submission by counsel for
the Minister, that Siljeur’s shooting at Luiters and his
companions, and
later at Davidse and his companions, evinced wild,
inexplicable behaviour, unconnected to police duties. It will be
recalled that
Luiters and his two female companions had fled and that
Luiters had been struck whilst he was fleeing. It is not unlikely
that Siljeur
considered them to be associated with those who had
attempted to rob him. He had told Davidse and his companions that the
persons
who had robbed him had fled into premises close by. One of
Luiters’ companions
had
sought refuge in premises close by
and was screaming there when Davidse first noticed her. It is clear
from the manner in which Siljeur
approached Davidse and his
companions that he was not entirely convinced that they were
unconnected to the persons who had attempted
to rob him. His
suspicions in this regard must have been heightened when Davidse’s
motor vehicle, with the lights switched off,
stopped alongside
Luiters where he lay in the street. Siljeur’s failure to tend to
Luiters and his subsequent approach to Davidse
and his companions
cumulatively indicate that he was concerned about the presence of
‘other’ would-be robbers, whom he associated
with Luiters.
[25] It is against this background that Siljeur’s
behaviour should be seen. It is therefore not, as submitted by
counsel for the
Minister, inexplicable. If Siljeur had been engaged
in a wild shooting spree he would, on the probabilities, not have
been cautious
in his initial approach to Davidse and his companions,
nor would he have stated his purpose.
[26] In my view, the court below, in considering the
first question postulated in the
K
case, answered it
correctly. I can find no flaw in the reasoning of Thring J in this
regard.
[27] It was submitted by counsel representing the
Minister that Siljeur’s failure to report the matter, his initial
lies about his
identity and denial that he was a policeman as well as
his refusal to hand over the firearm are destructive of the notion
that he
executed police duties at the time of the shooting. I
disagree. These facts are equally consistent with an inference that
he was
intent on putting distance between himself and the shooting.
[28] Having regard to the
dicta
cited earlier,
the fact that, in pursuing the would-be robbers and thereafter,
Siljeur did not strictly adhere to the police standing
orders or the
provisions of the
Criminal Procedure Act, does
not excuse the
Minister from liability. The law reports are replete with instances
where the State was held liable for negligent
and improper
performance by a servant of his tasks or duties.
[29] For the reasons stated the appeal is dismissed with
costs.
_________________
M S NAVSA
JUDGE OF APPEAL
CONCUR:
MPATI DP
FARLAM JA
CLOETE JA
VAN HEERDEN JA
1
Minister van Veiligheid en Sekuriteit v
Phoebus Apollo Aviation BK
2002 (5) SA 475
(SCA) para [11],
Phoebus Apollo Aviation CC v Minister of Safety and Security
2003
(2) SA 34
(CC) para [7].
2
Paras 27, 28 and 29.
3
In the
K
case, the Constitutional Court pointed out (at
footnote 39) that, although the
Rabie
judgment was criticised
in a later judgment of this court (
Minister of Law and Order v
Ngobo
[1992] ZASCA 172
;
1992 (4) SA 822
(A) at 832B-D), its statement of the
standard test was not directly criticised.
4
Para 32.
5
In this regard Thring J referred to
Mhlongo &
others v Minister of Police
1978 (2) SA 551
(A). In light of the
facts of the present case it is not necessary to deal with any
subsequent evolution in case law in respect
of the assessment of
evidence in this regard.