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[2013] ZAGPPHC 126
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Van Rooyen and Another v Minister of Police (70062/2009) [2013] ZAGPPHC 126 (16 May 2013)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
number: 70062/2009
Date:
16 May 2013
In
the matter between:
GERHARD
PHILIP RETIEF VAN
ROOYEN
...........................................................
1
st
Plaintiff
NATALIA
VAN
ROOYEN
...........................................................................................
2nd
Plaintiff
and
THE
MINISTER OF
POLICE
....................................................................................
Defendant
JUDGMENT
PRETORIUS
J.
[1]
The plaintiff’s instituted action against the Minister for
Safety and Security arising out of an incident on 1 March 2009
at
Klapperkop, Pretoria in which it is alleged that Cst RT Mahlake
wronfulty shot at the plaintiffs whilst in the employ of the
defendant.
[2]
It is alleged by the plaintiffs that the said Cst Mahlake was acting
in the course and scope of his employment with the defendant
when he
shot at the plaintiffs. Furthermore it is alleged that there was a
legal duty on the defendant not to employ Cst Mahlake
negligently
without ascertaining whether Cst Mahlake was not a person inclined to
crime, without psychologically evaluating Cst
Mahlake to ascertain
whether he is a competent person to be appointed as a policeman after
he had disclosed criminal inclinations
after he had been appointed as
a police officer. Furthermore it is alleged, that after Cst Mahlake
had shown criminal inclinations
during November 2007 the defendant
failed to relieve Cst Mahlake of his service pistol, alternatively
failed to institute an inquiry
in terms of section 102 of Act 60 of
2000 to ascertain Cst Mahlake’s competence to possess a
firearm.
[3]
The action of damages is for the emotional shock suffered by both
plaintiffs as a result of the defendant’s actions by
not
withdrawing the official firearm which had been issued to Cst
Mahlake, which had resulted in Cst Mahlake, wrongfully threatening
and attacking the plaintiffs.
[4]
Counsel for the plaintiffs requested the court to find that the
actions of the defendant were directly responsible for the emotional
shock suffered by the plaintiffs, alternatively that the defendant
should be vicariously held responsible for the actions of Cst
Mahlake.
[5]
The defendant, in the light of the evidence of the clinical
psychologist, Dr Kobus Truter, does not dispute that each of the
plaintiff’s suffered emotional shock as a consequence of the
incident at the Fort Klapperkop lookout point. The court, therefore,
does not have to deal with this dispute as it has been admitted by
the defendant.
Background:
[6]
On 1 March 2009 at 17h15 the first plaintiff, accompanied by the
second plaintiff, drove to the lookout point at Fort Klapperkop.
They
parked and had the car’s windows open and were talking to one
another. Their vehicle was the only vehicle present at
the lookout
point. The first plaintiff had his firearm in the car. They noticed a
vehicle, a Toyota Tazz, which parked alongside
plaintiffs’
vehicle and the driver wound down his vehicle’s window,
enquiring where Brooklyn Mall is and the first
plaintiff gave
directions. There were two occupants in the car. The driver had a
large pistol on his right hip when he alighted
from the Tazz and
approached the plaintiffs in their vehicle - he dropped the keys to
his vehicle and then grabbed and cocked the
firearm. He approached
the second’s plaintiff’s side of the vehicle and pointed
the firearm at her. The first plaintiff
warned him not to do so, but
he did not adhere to the warning.
[7]
The first plaintiff fired a shot at the man on his wife’s side
of the vehicle as he was sure the person would shoot the
second
plaintiff and he simultaneously heard the man firing a shot at them.
The first plaintiff immediately drove off as he was
not sure where
the attackers were. As he was driving away he saw Cst Mahlake, the
deceased, lying in the road with his pistol next
to him. They called
a ambulance, went to the police and laid a charge of attempted
hi-jacking.
[8]
On members of the South African Police Services attending the scene
it was found that the driver of the Toyota Tazz, who been
fatally
shot was Cst Romeo T Mahlake (“Cst Mahlake”). Cst Mahlake
was a member of the SAPS attached to the National
Mobile Train Unit.
[9]
The following day the first plaintiff was arrested on a charge of
murder and released on bail of R1,000.00. On 9 June 2009 the
Director
of Public Prosecutions decided not to prosecute the first plaintiff.
[10]
It is common cause that there was an incident during November 2007,
which resulted in a charge being laid against Constable
Mahlake for
pointing of a firearm and a second charge of discharging a firearm
in a public place. These charges were withdrawn
by the complainant in
the case on 24 January 2008.
[11]
These charges were laid as a result of Cst Mahlake’s actions on
23 November 2007. On 23 November 2007 at 23h30 Cst Mahlake
tried to
enter a nightclub in Sunnyside with a beer in his hand. The bouncer
at the door refused him entrance with the beer in
his hand, which
resulted in him going to his car and fetching his firearm. He cocked
the pistol and pointed it at the bouncer.
He then returned to his
car, firing a shot into the air. His firearm was taken from him after
his arrest. After the case had been
withdrawn by the Director of
Public Prosecutions on the basis that the complainant and Cst Mahlake
had settled the matter, his
official firearm was returned to him. It
is common cause that this was the same firearm that was used during
the Klapperkop incident
on 1 March 2009.
[12]
There was a direction by a senior officer in the employ of the
defendant that an inquiry in terms of
section 102
of the
Firearms
Control Act 60 of 2000
had to be held into Cst Mahlake’s
fitness to possess a firearm, after the case against him had been
withdrawn. No such inquiry
was held and no disciplinary proceedings
were held in connection with Cst Mahlake’s actions at the
nightclub.
[13]
It was further common cause that Cst Mahlake was in possession of a
police radio and bulletproof vest issued by the defendant,
at the
time of the incident and that these items were found on his person
and in his car at the scene.
[14]
Mr Ferreira, for the plaintiffs, argued that the court should find
that the defendant was directly liable for Cst Mahlake’s
conduct, as there was a duty of care on the defendant to determine
the fitness of Cst Mahlake to hold a firearm. It was, in effect
admitted by the defendant that an inquiry should have been held in
terms of
section 102
to determine the fitness of Cst Mahlake to be in
possession of an official firearm after the incident of 23 November
2007.
[15]
In Feldman (Pty) Ltd v Mall
1945 AD 733
at 741 Watermeyer CJ held:
"...
a master who does his work by the hand of a servant creates a risk of
harm to others if the servant should prove to be
negligent or
inefficient or untrustworthy; that, because he has created this risk
for his own ends he is under a duty to ensure
that no one is injured
by the servant's improper conductor negligence in carrying on his
work..." (Court’s emphasis)
[16]
In Minister of Police v Rabie 1986 (1) 117 AD at p 134 Jansen JA
found:
“
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.’’ (Court’s emphasis)
[17]
This dictum was dealt with by the Constitutional Court in K v
Minister of Safety and Security
[2005] ZACC 8
;
2005 (6) SA 419
(CC). O’Regan J
found that the test set out in Rabie’s case (supra) is
sufficiently flexible to incorporate the constitutional
norms as well
as other norms. O’Regan J held at para 44 and 45:
“
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.
[45]
The common-law test for vicarious liabiiity in deviation cases as
developed in Rabie’s case and further developed earlier
in this
judgment needs to be applied to new sets of facts in each case in the
light of the spirit, purport and objects of our Constitution.
As
courts determine whether employers are liable in each set of factual
circumstances, the rule will be developed. The test is
one which
contains both a factual assessment (the question of the subjective
intention of the perpetrators of the deiict) as well
as a
consideration which raises a question of mixed fact and law, the
objective question of whether the delict committed is 'sufficiently
connected to the business of the employer' to render the employer
liable(Court’s emphasis)
[18]
In F v Minister of Safety and Security 2012 (1) (SA) 536 (CC)
the
Constitutional Court dealt with vicarious liability. The question as
to the connection between the crime and the perpetrator’s
employment was dealt with in para 52 where the court found:
“
The
normative components that point to liability must here, as K
indicated, be expressly stated. They are: the State's constitutional
obligations to protect the public; the trust that the public is
entitled to place in the police; the significance, if any, of the
policeman having been off duty and on standby duty; the role of the
simultaneous act of the policeman's commission of rape and
omission
to protect the victim; and the existence or otherwise of an intimate
link between the policeman's conduct and his employment.’’
(Court’s
emphasis)
[19]
The court further found at para 61:
“
[61]
These constitutional duties resting upon the State, and more
specifically the police, are significant in that they suggest
a
normative basis for holding the State liable for the wrongful conduct
of even a policeman on standby duty, provided a sufficiently
close
connection can be determined between his misdeed and his
employment.’’ (Court’s emphasis)
[20]
The court dealt with the question of trust where a police man is
employed and found at para 62:
“
[62]
A further factor connecting the wrongful act at issue here with the
policeman's employment is trust. This factor operates both
normatively, in laying the basis for holding the State liable for the
misdeed of even an off-duty policeman, provided there is
a sufficient
connection with his employment, and factually, in that it creates the
connection between the employment and the wrongful
conduct ”
(Court’s emphasis)
[21]
In Minister of Safety and Security v Hamilton 2004 (2) SA
216
SCA Van Heerden AJA held a paragraph 44:
“
[44]
As already stated, I am of the view that, had the relevant police
members executed their legal duties properly, they would
have come to
the compelling conclusion that McArdell was not fit to possess a
firearm. ”
[22]
In Minster of Safety and Security v Duivenboden
2002 (6) SA
431
SCA at pare 22 Nugent JA found:
“
In
this case we are concerned only with whether police officers who, in
the exercise of duties on behalf of the State, are in possession
of
information that reflects upon the fitness of a person to possess
firearms are under an actionable duty to members of the public
to
take reasonable steps to act on that information in order to avoid
harm occurring.” (Court’s emphasis)
[23]
The principles enunciated in the abovementioned authorities must be
applied to the present case to determine whether the defendant
is
liable.
[24]
The first test the court has to apply is the “but for”
test. In the present case the policeman, Cst Mahlake, in
the employ
of the defendant, had been known by the defendant to act
irresponsibly when using his firearm, as can seen from his
actions
when confronted by the by the bouncer on 23 November 2007. These
actions of Cst Mahlake lead to a prosecution, which was
only
withdrawn when the matter was “settled" with the
complainant. It is clear from the direction of the senior officer
that the matter was serious enough to justify an enquiry by the
employer in terms of
section 102
of the
Firearms Control Act. The
question as to what would have happened had the defendant held such
an inquiry can only be answered if the circumstances of Cst
Mahlake’s
actions are taken into consideration. In the Hamilton decision
(supra) van Heerden AJA set out a para 43:
“
[43]
With regard to the first leg of the enquiry (factual causation), it
must be remembered that a plaintiff is not required to
prove the
causal link with certainty, but simply to establish that the wrongful
and negligent conduct complained of was probably
a cause of the loss
sustained. ” (Court’s emphasis)
[25]
Mr Bester, for the defendant, argued that if Cst Mahlake had not had
his service firearm it was more than likely that he would
stilt have
procured a firearm and held up the plaintiffs. The court finds that
in this instance this argument is not based on any
evidence. It was
reasonable to have expected the defendant to take positive measures
to prevent the harm, by having held an inquiry
in terms of
section
102
during 2007 or 2008 to ascertain whether Cst Mahlake was
competent to have a fire-arm.
[26]
The court takes cognisance of the dictum in Minster of Safety and
Security v Duivenboden (supra) and finds that the defendant
failed to
take a reasonable steps to avoid harm, which was a wrongful omission
by the defendant. The question should thus be whether
a reasonable
person in the position of the defendant would have foreseen harm in
these circumstances and would have acted to avert
the actions of Cst
Mahlake.
[27]
The court finds that a reasonable person in the position of the
defendant would have acted after the criminal actions of Cst
Mahlake
became known in 2007. Furthermore the defendant realized that some
action was necessary in the circumstances and directed
that an
inquiry be held in terms of
section 102.
There is no indication as to
why the inquiry was not held. These actions of the defendant caused
Cst Mahlake to be in possession
of his service firearm. The court
finds that there was a duty on the defendant to ensure that the
section 102
inquiry be held and that the defendant failed to do so.
[28] In Minister of
Safety and Security v Duivenboden (supra) Nugent JA approved the test
for negligence as set out in Kruger v
Coetsee
1966 (2) SA 428
AD at
para 430 E - F:
For
the purposes of liability culpa arises if-
(a)
a diligens paterfamilias in the position of the defendant
(i)
would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial
loss;
and
(ii)
would take reasonable steps to guard against such occurrence; and
(b)
the defendant failed to take such steps. ”
[29]
In the present case the defendant should reasonably have foreseen
that harm may ensue should the
section 102
inquiry not be held to
determine whether Cst Mahlake was fit and competent to be in
possession of his service firearm. Had there
been an inquiry it is
foreseeable that Mahlake would have been found unfit to possess a
firearm, if cognisance is taken of his
behaviour on 23 November 2007.
[30]
The argument by counsel for the defendant that the incident involving
the plaintiffs at Fort Klapperkop would have occurred,
irrespective
of the
section 102
inquiry having been held and Cst Mahlake’s
firearm withdrawn cannot be seriously entertained. There is no
indication or evidence
whatsoever that in the event of his official
firearm being withdrawn, that Cst Mahlake would have unlawfully
acquired the possession
of a firearm to further his criminal
behaviour.
[31]
To find vicarious liability the court has to find whether the
connection between the conduct of Cst Mahlake and his employment
was
sufficiently close to render the defendant liable. In F v Minister of
Safety and Security {supra) the court held at para 48:
“
[48]
What flows from this test and the test in K, is that even if the
nature of the conduct giving rise to the deiictuai claim suggests
that the employer did not or could not have authorised that conduct,
and even if the deviation is great in respect of space and
time, that
would not necessarily exempt the employer from liability. The
employer could still be held vicariously liable if a connection
exists between the conduct complained of and the business of the
employer. That link must, however, be a real and sufficiently
close
one.” (Court’s emphasis)
[32]
Cst Mahlake did not hold up the plaintiffs and shoot at them in the
furtherance of the constitutional mandate of his employer.
The
subjective test as set out in K v Minister of Safety and Security
(supra) does not establish State liability in this case.
[33]
Therefore, according to K v Minister of Safety and Security (supra)
the second question “does not raise purely factual
questions,
but mixed questions of fact and law. ”
[34]
The State’s constitutional obligations to protect the public;
the trust the public is entitled to place in the police,
the omission
by the defendant to hold a
section 102
inquiry, the omission of
withdrawing Cst Mahlake’s weapon are ail factors to be taken
into consideration.
[35]
The plaintiffs had a constitutional right to security of person and
had a right to expect to be protected by police and that
the
defendant would act in such a way as to prevent harm to the citizens
of the country by their employees.
[36]
In F v Minister of Safety and Security (supra) at para 67 it was
held:
767]
I accept that the distinction between a policeman who is on duty and
one who is off duty is a relevant factor in determining
the closeness
of the connection between the wrongful act and the perpetrator's
employment I do not accept, however, that it is
determinative of
whether the State may be heid liable.” (Court’s emphasis)
[37]
If this is so, then the fact the Cst Mahlake was off duty is of no
consequence as it was the omission by the defendant to
act in terms
of
section 102
, or at all that lead to Cst Mahlake holding up the
plaintiffs with his service weapon. In this matter the employment
provided the
means to commit the crime.
[38] In Minister of
Safety and Security v Duivenboden (supra) Nugent JA dealt with
accountability in para 22:
“
There
is no effective way to hold the State to account in the present case
other than by way of an action for damages and, in the
absence of any
norm or consideration of public policy that outweighs it, the
constitutional norm of accountability requires that
a legal duty be
recognised. The negligent conduct of police officers in those
circumstances is thus actionable and the State is
vicariously liable
for the consequences of any such negligence. ’’ (Court s
emphasis)
[39]
This requirement of “a sufficiently close connection’’
between the act of a member of the defendant for his
own interests
and the business of the defendant prevents giving rise to absolute
liability. However in the present matter, the
court finds a
sufficiently close connection between Mahlake’s acts and the
defendant’s omission in holding the
section 102
inquiry. The
defendant is thus vicariously liable for the damages for emotional
shock to the plaintiffs.
[40]
I have considered all these facts, authorities and argument by
counsel and come to the conclusion that the plaintiffs have
proved on
a balance of probabilities, in these particular circumstances, that
the defendant is liable for the damages as claimed
by the plaintiffs.
[41]
Counsel for the plaintiff argued that interest on the amounts should
be granted from the date of the letter of demand, whilst
counsel for
the defendant argued that interest should only be granted from the
date the summons was issued. I have considered this
carefully. In
West Rand Estates v New Zealand Insurance Co Ltd
1926 AD 173
at 183
Solomon JA found:
“
There
is no satisfactory reason for following any other practice, and we
think that we should now definitively lay down the rule
that mora
begins to run from the date of receipt of the letter of demand. ”
[42]
This has been the dictum followed throughout and approved once more
in Thorougbred Breeders Association v Price Waterhouse
[2001] 4 AIISA
161 (A).
[43]
This court finds that there was a letter of demand in the present
instance and therefor mora should run from the date of the
letter of
demand.
[44]
The following order is made:
A. FIRST PLAINTIFF
1.
The Defendant is declared to be liable for the damages suffered by
the First Plaintiff as a result of the incident which occurred
on
1
March 2009 at Fort Klapperkop, Pretoria.
2.
Payment of the sum of R4 780.00 in respect of past psychological
treatment by Dr P J Visser.
3.
Payment of the sum of R24 887.00 in respect of future psychological
treatment.
4.
Payment of the sum of R50 000.00 as general damages in respect of
claim 2.
5.
Payment of the sum of R13 680.00 in respect of legal expenses
incurred in respect of claim 2.
6.
Interest on the aforesaid amounts at 15.5% per annum a tempore morae,
the mora date being 22 August 2009.
7.
The Defendant is directed to pay the First Plaintiff’s costs in
the trial for the determination of the merits of the action
which
costs shall include:
7.1
The costs of senior counsel;
7.2
The costs of the reports by Dr Kobus Truter as well as his qualifying
and appearance fees;
7.3
The costs of the report by Mr J J C Sauer.
8.
The trial for the determination of the quantum of general damages in
respect of the First Plaintiff’s first claim is postponed
sine
die.
B. SECOND PLAINTIFF
1.
The Defendant is declared to be liable for the damages suffered by
the Second Plaintiff as a result of the incident which occurred
on 1
March 2009 at Fort Klapperkop, Pretoria.
2.
Payment of the sum of R4 780.00 in respect of past psychological
treatment by Dr P J Visser.
3.
Payment of the sum of R29 737.00 in respect of future psychological
treatment.
4.
Interest on the aforesaid amounts at 15.5% per annum a tempore morae,
the mora date being 22 August 2009.
5.
The Defendant is directed to pay the Second Plaintiff’s costs
in the trial for the determination of the merits of the action
which
costs shall include:
5.1
The costs of senior counsel;
5.2
The costs of the reports by Dr Kobus Truter as well as his qualifying
and appearance fees;
5.3
The costs of the report by Mr J J C Sauer.
6.
The trial for the determination of the quantum of general damages in
respect of the Second Plaintiff’s claim is postponed
sine die.
Judge
Pretorius
Case
number : 70062/2009
Heard
on : 15 April 2013
For
the Applicant / Plaintiff : Adv Ferreira SC
Instructed
by : JW Wessels
For
the Respondent : Adv Bester
Instructed
by : The State Attorney
Date
of Judgment : 16 May 2013