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2012
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[2012] ZAFSHC 188
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Ngalo v Minister of Safety and Security (5581/09) [2012] ZAFSHC 188 (11 October 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 5581/09
In
the matter between:
BIANCA
SANNA NGALO
............................................................
Plaintiff
and
MINISTER
OF SAFETY & SECURITY
....................................
Defendant
_____________________________________________________
HEARD ON:
10 OCTOBER 2012
_____________________________________________________
DELIVERED ON:
11 OCTOBER 2012
_____________________________________________________
JUDGMENT
_____________________________________________________
H
M MUSI, JP
[1] This is a claim for
damages arising out of a motor vehicle accident that occurred on the
10
th
December 2007 on the road between Luckhoff and
Fauresmith. Ms Bianca Sanna Ngalo (the plaintiff) was then a
passenger in a police
motor vehicle, a bakkie with registration
numbers BPD 882 B (the police bakkie), and there and then driven by
constable Rasebonang.
The bakkie had capsized as a result of which
the plaintiff sustained injuries. Plaintiff is claiming an amount of
R500 000,00 as
compensation. It is not disputed that the accident was
due to the negligent driving of the driver of the police bakkie.
[2] The defendant is the
Minister of Safety & Security who is cited in his capacity as the
authority with responsibility over
members of the South African
Police Service and it is common cause that the driver of the police
bakkie was acting in the course
and within the scope of his
employment in the South African Police Service.
[3] It is the plaintiff’s
case that the defendant is vicariously liable to compensate her for
her injuries. The defendant
disputes liability and, in particular,
relies on the provisions of section 56 of the South African Service
Act, No 68 of 1995.
I shall revert to this defence in due course.
[4] The uncontested facts
of the matter are that the plaintiff was due to attend a maintenance
court on the 10
th
December 2007 at the magistrates’
court Fauresmith, in which she was the complainant. In the morning of
that day she went
to the police station at Luckhoff and there she
boarded the police bakkie. There were sixteen passengers at the back
of the bakkie
and three at the front, including the driver. The
passengers at the back were being transported to the court either at
Fauresmith
or Jagersfontein. The road to Jagersfontein goes past
Fauresmith. The plaintiff’s testimony is undisputed that the
bakkie
approached a curve at a high speed and as the driver was
unable to negotiate the curve, he lost control and the bakkie
capsized,
injuring the plaintiff and others.
[5] The dispute in the
evidence centred on the plaintiff’s evidence that she had been
approached by two police officers from
the Luckhoff police station on
the Friday preceding the day of the accident. They had been to serve
a summons requiring her to
attend court on the 10
th
of
December 2007. The plaintiff claimed that the police officers told
her to report at the police station on the morning of the
10
th
so that she could be transported to the court. She named the two
police officers as Madona and Thaele. This version was denied
by the
two police officers. Thaele knew the plaintiff’s family well
but said that he left the Luckhoff police station on
28 September
2007 when he was promoted and transferred to Petrusburg where he is
station commander holding the rank of captain.
So he was no longer at
Luckhoff in December 2007. Madona denied having ever served a summons
on the plaintiff either in December
or at any time. He went on to
confirm Thaele’s evidence that they had been detectives and had
nothing to do with maintenance
matters.
[6] The plaintiff gave
contradictory evidence. She initially testified that she had been
told to report back at court on the 10
th
of December 2007
and that her father would also be warned to be present on that day.
Subsequently she changed and claimed that
she had not been given a
date and heard of the date from the two police officers. She also
testified that the summons was served
on her on the 10
th
of December 2007, but under cross-examination changed this insisting
that she had said that summons was served before the 10
th
of December 2007. Her counsel objected to the cross-examination on
this point and insisted that she had in fact said that the summons
was served before the 10
th
of December. The record of the
proceedings clearly shows that she had contradicted herself in all
these respects.
[7] It is clear to me
that the plaintiff fabricated evidence in order to create the false
impression that she had been a witness
who was entitled to be
transported in a police vehicle. In this regard, I accept the version
of the two police officers who were
credible witnesses and whose
evidence disclosed no material contradictions whatsoever.
[8] There was also a
dispute relating to a portion of the statement that the plaintiff
made to warrant officer Taaibos, who investigated
the accident in
question. The relevant portion reads as follows:
“
4. Ek het ‘n
hike by hulle gevra en ek het my kind se onderhoud geld by die hof
gaan gaal.”
The plaintiff denied
having said this. Now I found warrant officer Taaibos to be a
credible witness but I think that he may have
misunderstood the
plaintiff as to the nature of the maintenance claim. I say this
because the plaintiff has given a full and credible
explanation
regarding this. In the view that I take of the matter, this dispute
is of no consequence.
What is important is that
the version of the plaintiff regarding what transpired from the
moment she got to the police station in
the morning of the 10
th
December 2007, is not contradicted by any other evidence. It may be
noted in this regard that neither the driver of the bakkie
nor the
police station commander at the time was called to testify.
[9] It is apposite to
quote in full the provisions of section 56 of the South African
Police Service Act:
“
Whenever any
person is conveyed in or makes use of any vehicle, aircraft or
vessel, being the property or under the control of the
State in the
service, the State or any member shall not be liable to such person
or his or her spouse, parents, child or other
dependant for any loss
or damage resulting from any bodily injury, loss of life or loss of
or damage to property caused by or arising
out of or in any way
connected with the conveyance in or the use of such vehicle, aircraft
or vessel,
unless
such person is so conveyed or makes use thereof in or in the interest
of the performance of the functions of the State
:
provided that the provisions of this section shall not affect the
liability of a member who wilfully causes the said loss or damage.”
[10] It appears to me
that this case has to be decided upon the interpretation of the
highlighted passage and the question is whether
the plaintiff’s
conveyance was in the interest of the performance of the functions of
the State.
[11]
Counsel for both the plaintiff and defendant could not produce any
authority on the point and, in particular, counsel for the
defendant
intimated that he researched the issue, but could find no authority.
The closest authority that counsel for the plaintiff
found, is the
judgment in
N
K v
MINISTER OF SAFETY AND SECURITY
[2005] ZACC 8
;
2005 (6) SA 419
(CC). In this
case three uniformed and on-duty police officers had given a lift to
a young woman who had been stranded at night.
Instead of taking her
home the officers took her to a secluded spot where they raped her.
The High Court found that the State was
not liable for the conduct of
the officers and this decision was confirmed on appeal by the Supreme
Court of Appeal. The Constitutional
Court ruled that the State was
vicariously liable in the circumstances of the case.
[12] Counsel for the
defendant argued that the above case is distinguishable from the
instant case and submitted that the plaintiff’s
conveyance
could not have been in the interest of the performance of the
functions of the State. He contended that the plaintiff’s
attendance at court was in her own interest as a claim for
maintenance is in the nature of a civil claim not requiring the
intervention
of the State or police. He submitted that the
plaintiff’s claim should have been against the policeman who
transported her
in contravention of the law and police standing
orders.
[13] I agree that the
judgment in
NK v MINISTER OF SAFETY AND SECURITY
,
supra
, is, on the facts, distinguishable from the instant
case. I, however, agree with counsel for the plaintiff that the
judgment nonetheless
provides valuable guidance in the adjudication
of matters of this nature. The following passage is particularly
instructive and
it is apposite to reproduce the whole of paragraph
45:
“
The common
law test for vicarious liability 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 delict) as well as a consideration which raises a
question of mixed fact and law, the objective
question of whether the
delict committed is in ‘sufficiently connected to the business
of the employer to render the employer
liable’.”
The court further made it
clear that the fact that the police officer’s conduct in
question is prohibited may not necessarily
be an impediment to
founding liability. It is noteworthy that
in casu
, unlike in
the
NK
-case, the police officer was not pursuing his
own interest outside the scope of his employment. He was duty bound
to take to court
some of the people he was conveying (eg an awaiting
trial prisoner and state witnesses) and, as such, the policeman was
advancing
his master’s business.
[14] In my view, the
following factors compel the conclusion that the plaintiff’s
conveyance was in the interest of the performance
of the functions of
the State:
14.1 The court to which
the plaintiff would ordinarily have gone for her maintenance claim
was not functioning and the people of
Luckhoff had to travel a
distance away to another town in order to access justice. This is an
important consideration, for if the
Luckhoff court was functioning,
there could never have been any argument that the plaintiff would
need to be transported thereto.
14.2 The right of access
to court is a fundamental right enshrined in the Constitution
(section 34) and the State has a responsibility
to ensure that the
citizens have access to the courts (section 165(4)). Provision of
access to justice is one of the State’s
functions.
14.3 It was important
that the people required to attend court are able to do so. This is
in the interest of the administration
of justice.
14.4 From the totality of
the evidence on record it can be deduced that the plaintiff and her
fellow passengers had difficulty travelling
to Fauresmith at their
expense and needed to be assisted. Sergeant Maduna, in particular,
testified that ordinary people like the
plaintiff travelling from
Luckhoff to Fauresmith on their own would normally gather at a road
crossing where they would hitchhike
to Fauresmith. In these
circumstances, it is understandable why the police saw it fit to
transport the people going to court. It
is clear that Rasebonang was
not on a frolic of his own in transporting the plaintiff and others.
14.5 It is clear from the
plaintiff’s uncontested evidence that only people going to
court were transported and it is noteworthy
that all had gathered at
the police station from where they were transported. This is an
indication that the police saw it as part
of their responsibility to
take them to court.
14.6 It is not difficult
to imagine the negative impact on the administration of justice if
people who are required to attend court
failed to do so: the undue
postponements and the time wasted as a result thereof as well as the
resultant case backlogs. This will
apply to all cases, including
maintenance claims.
[15] I accordingly
conclude that the defendant is vicariously liable to compensate the
plaintiff for the injuries she sustained
in the relevant accident.
[16] Regarding costs, the
normal rule applies and costs must follow the cause. However, as
counsel for the defendant pointed out,
the trial did not proceed on
the first day, being 29 November 2011, due to the fact that for some
or other reason the plaintiff
was not in a position to proceed on
that day. Furthermore, the plaintiff brought an application for
condonation of the late filing
of a replication, which was granted
unopposed. This replication was, in my view, wholly unnecessary and
was not even canvassed
during argument. The costs thereof must also
be excluded and the same applies to the costs of the postponement of
the 6
th
December 2011 when an interpreter could not be
found.
[17] The following order
is made:
(a) The defendant is
vicariously liable for the plaintiff’s damages suffered as a
result of the injuries she sustained in
the accident that occurred on
the 10
th
of December 2007. The quantum thereof is to be
proved or agreed upon.
(b) The defendant is to
pay the costs of suit, but excluding the costs of the 29
th
of November 2011, 6
th
December
2011 and those relating
to the plaintiff’s replication.
____________
H.M. MUSI, JP
On
behalf of plaintiff: Adv I T Dutton
Instructed
by:
Nonxuba
Inc
BLOEMFONTEIN
On
behalf of defendant: Adv B S Mene
Instructed
by:
The
State Attorney
BLOEMFONTEIN
/sp