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[2011] ZAGPPHC 227
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Von Beneke v Minister of Defence (50105/2009) [2011] ZAGPPHC 227; 2012 (5) SA 225 (GNP) (22 November 2011)
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
REPUBLIC
OF SOUTH AFRICA
CASE
NO: 50105/2009
DATE:22/11/2011
In
the matter between:
LM
VON
BENEKE
….............................................................
Plaintiff
and
MINISTER
OF
DEFENCE
…..................................................
Defendant
JUDGMENT
Tuchten
J:
1.
This is an action for damages sustained in an armed robbery which
occurred on or about 7 March 2003 at the Three Birches on the
road
between Groblersdal and Bronkhorstspruit during which one Vusi
Mahlangu shot the plaintiff several times with an R4 assault
rifle
and the plaintiff’s partner was shot dead.
2.
The parties have placed before me a stated case pursuant to the
provisions of rule 33(1). I am called upon to rule on the liability
of the defendant, the quantum of damages to be decided on another
day. I was not specifically asked to make an order in terms of
rule
33(4). For the sake of good order, I direct mero motu that the
question of the liability of the defendant arising from the
facts set
out in the stated case be determined separately from any other
question arising in the case and order that all further
proceedings
be stayed until such question has been disposed of. When I refer to
the facts in this judgment, they are as drawn from
the stated case.
3.
The carcase of the R4 was stolen from the SA National Defence Force
at TEK base, Pretoria at some time before January 2002 by
unknown
employees of the Defendant or due to the unlawful and negligent
actions of unknown employees of the defendant. During the
period
January 2002 to March 2003 one Jacob Matidikile Motaung (SANDF number
98005648PF) was responsible for the safekeeping of
various dangerous
infantry weapons, of which the R4 assault rifle is one example, at
the 4th SA Infantry base at Middelburg. Motaung
supplied R4 rifle
parts, ammunition and magazines to Mahlangu. Using these parts,
Mahlangu rendered the R4 stolen from the TEK
base operable.
4.
Vusi Mahlangu was not in the employ of the defendant. As the
plaintiff’s case was presented in argument before me, the
plaintiff seeks to hold the defendant liable on two grounds:
4.1
firstly, on the ground of the unlawful conduct of the defendant’s
employees when the carcase was stolen at the TEK base;
4.2
secondly, on the ground that the defendant is vicariously liable for
the unlawful conduct of Motaung at the 4th SAI base.
5.
In regard to the first ground relied upon by the plaintiff, there is
no indication in the stated case of the status or duties
of the
employees who were party to the theft of the carcase of the R4; there
is no basis on which to find that the defendant was
through any
employee or representative directly liable for the consequences of
the theft of the carcase; there is no suggestion
that the unknown
employees were acting during the course or within the scope of their
employment with the defendant. I turn to
consider the second ground
relied upon by the plaintiff.
6.
Paragraph 1.9 of the stated case reads:
At
all material times, ... Motaung acted in the course and scope of his
duties and within his sphere of authority.
Senior
counsel for the plaintiff was at pains to point out that this
paragraph must not be read to imply a concession by the defendant
that Motaung was for present purposes acting within the scope of his
authority. Indeed I do not read it that way. The issue whether
the
defendant is vicariously liable for the delicts committed by Motaung
is at the heart of the present case. What is common cause,
however,
is that Motaung was on duty at the relevant time or times, in charge
of preserving the infantry weapons and ammunition
at the base, and
handed to Mahlangu over the parts and ammunition necessary to convert
the R4 carcase into a lethal weapon.
7.
Paragraph 1.11 of the stated case reads:
At
all material times, ... Motaung knew or ought to have known, that...
Mahlangu planned to use, and in fact did use, the stolen
R4 rifle
parts, ammunition and magazines to commit armed robberies.
8.
It further appears from the stated case that Mahlangu was subsequent
to the attack upon the plaintiff shot dead by the police
and his
co-robbers were arrested and convicted of the murder of the
plaintiff’s partner, the attempted murder of the plaintiff
and
the armed robbery during the course of which these atrocities were
committed.
9.
It is common cause on the stated case that as a direct result of the
actions of Mahlangu during the robbery, the plaintiff sustained
damages and suffered harm.
10.
Counsel for the plaintiff submitted that the plaintiff’s case
fell within the ambit of the principles established in
Feldman v
Mall,
1
as interpreted in such cases as Carmichelle v Minister of Safety and
Security and Another (Centre for Applied Legal Studies Intervening),
2
Van Eeden v Minister of Safety and Security (Women’s Legal
Trust, as amicus curiae),
3
Minister of Safety and Security v Van Duivenboden,
4
and, particularly, K v Minister of Safety and Security.
5
Counsel further referred me to, and sought to distinguish, Minister
of Safety and Security v F.
6
11.
Counsel for the defendant argued that the case ought to be
determined on the basis that Motaung was an accomplice of Mahlangu
who had well known that the articles handed over, illicitly, to
Mahlangu, were to be used in criminal conduct of some type. That
being
so, the argument proceeded, the defendant could not be held liable
for the conduct of Motaung because what Motaung did was
so far
removed from his duties as to constitute a frolic of his own as that
phrase is used in Feldman v Mall. Counsel accepted
that the strange
consequence of his submission was that the defendant would have been
liable if the plaintiff had established negligence
on the part of
Motaung but should escape liability if the case is evaluated on the
footing that Motaung’s fault constituted
dolus. This, argued
counsel, is because the circumstances in which the plaintiff
sustained damages are too remote from the intentional
conduct of
Motaung to fix the defendant with liability. Counsel’s
submission is therefore that foreseeability arises twice
in the
present context; firstly when Motaung’s conduct is evaluated to
determine whether Motaung would have been liable to
the plaintiff and
secondly when the issue of vicarious liability is evaluated.
12.
It is implicit in the submission of counsel for the defendant that
Motaung himself would have been liable to the plaintiff
both on the
basis of culpa and of dolus and thus that the harm which the
plaintiff suffered was foreseeable to Motaung. I agree.
In South
Africa, the predominant, if not the only, motive for the illicit
acquisition of assault rifles such as the R4, is the
commission of
criminal acts, amongst which armed robberies are prominent.
13.
I do not agree that the issue of foreseeability arises again in the
present context. As was pointed out in Feldman v Mall at
741,
vicarious liability is founded upon the public policy consideration
that if the servant is about the affairs of the master,
then by that
fact the employer is bound to see that his affairs are conducted with
due regard for the safety of others. It follows
that once the
employee is fixed with liability, then if the test for vicarious
liability is satisfied, the liability of the employer
will follow,
regardless of whether the master could have anticipated the nature of
the harm that befell the plaintiff.
14.Section
200(2) of the Constitution provides:
The
primary object of the defence force is to defend and protect the
Republic, its territorial integrity and its people in accordance
with
the Constitution and the principles of international law regulating
the use of force.
This
provision is replicated in
s 2(b)
of the
Defence Act, 42 of 2002
.
Section 2(g)
of the
Defence Act provides
that the Defence Force must
respect the fundamental rights and dignity of its members and the
public. One of the important fundamental
rights engaged by
s 2(g)
of
the
Defence Act is
the right of everyone, enshrined in
s 12(1
)(c) of
the Constitution, to be free of all forms of violence from either
public or private sources.
Section 2
of the
Defence Act provides
that
the Minister of Defence, any organ of State as defined in s 239 of
the Constitution, as well as all members of the Defence
Force and any
auxiliary service and employees must in exercising any power or
performing any duty in terms of the
Defence Act have
regard to the
principles articulated in the section.
15.
The business
7
of the defendant is not merely to wage war when duly called upon to
do so. No less it is the constitutionally mandated business
of the
defendant to see to it that the members of the Defence Force do not
use their training and access to weapons against their
own people and
to see to it that its engines of destruction are used only for
constitutional purposes. It thus follows, in my view,
that at the
factual level it was certainly foreseeable by the defendant that the
people of South Africa could suffer harm arising
if the weapons of
the Defence Force at the 4th SA Infantry base at Middelburg were not
properly preserved or deliberately placed
in the hands of criminals.
To the extent that public policy plays any part in the present
enquiry, I respectfully adopt the reasoning
in Van Eeden at paragraph
19: in circumstances such as the present, there is no other practical
and effective remedy available
to the victim of violent crime. So
even if foreseeability is an issue at this context, its existence has
been established.
16.
This is a case in which the defendant is sought to be held liable for
the wrongful act of one of her on duty officials. That
fact
distinguishes the present case from Minister of Safety and Security v
F. But as was found in that case, the test to be applied
is as laid
down in K v Minister of Safety and Security. K’s case (at
paragraph 47) is authority for the proposition that
the fact that an
employee’s conduct was purely in the interests of the business
of the employee is not sufficient to ensure
that the employer will
not be liable. A further question will need to be considered and that
is whether in pursuing his or her
own interests, the employee will be
neglecting the tasks required by the employer.
17.As
I understand the law as laid down in K’s case, if the
indulgence of the employee in a frolic embodies a neglect to perform
the employer’s work properly, the employer will be vicariously
liable. The simultaneous omission and commission which constituted
the act of Motaung in providing the articles to Mahlangu would not
only be relevant to wrongfulness (which is not on the arguments
presented to me an issue in this case) but may also be relevant to
determining the question of vicarious liability in general and,
in
particular, the question whether there is a sufficiently close
connection between the wrongful conduct and the purposes and
business
of the employer.
18.
In the present case the relevant omission of Motaung is that he
failed to perform his duty to preserve the weapons and equipment
of
the Defence Force from being used for purposes other than those
sanctioned by law, as he was obliged to do pursuant to the lawful
orders given to him and the principles in
s 2
of the
Defence Act,
which
are expressly made binding upon persons in Motaung’s
position. The safekeeping of these weapons and equipment is at the
core
of the duty undertaken by Motaung.
19.
This being so, I conclude that there is a sufficient connection
between the conduct of Motaung and the purposes and business
of the
defendant to render the defendant vicariously liable to the plaintiff
for the conduct of Motaung which caused the plaintiff
to suffer
damages. There was some suggestion in argument that the cases do not
go as far as holding an employer liable where the
perpetrator of the
act which immediately led to the harm (in the present case the armed
robber Mahlangu himself) was not in the
employ of the defendant. I do
not think that this can be correct. In Van Eeden, the Minister of
Safety and Security was held liable
to a person, who was sexually
assaulted, raped and robbed, for damages arising from the negligent
conduct of the police in negligently
allowing a known dangerous
criminal and serial rapist to escape from custody; in Van
Duivenboden, the Minister of Safety and Security
was held liable for
the negligent conduct of the police in failing to take all reasonable
steps to deprive of his firearm a person
who was known to the police
to be unfit to possess such a weapon and who subsequently used that
weapon to murder or harm several
innocent people.
20.
I accordingly make the following order:
1.
It is declared that the conduct of Motaung as described in the
stated case was wrongful and that the defendant is liable to
the
plaintiff for such damages as the plaintiff may be able to prove
arising from the armed robbery on 7 March 2003 at the Three
Birches
on the road between Groblersdal and Bronkhorstspruit.
2.
The issue of quantum of damages is postponed sine die.
3.
The defendant must pay the plaintiff’s costs, including the
costs consequent upon the employment of senior and junior counsel.
NB
Tuchten
Judge
of the High Court 22 November 2011
For
the plaintiff:
Adv
P de Jager SC Adv R Strydom
Instructed
by DP du Plessis Inc, Pretoria
For
the defendant:
Adv
M Mohlamonyane
Instructed
by the State Attorney, Pretoria
VonBenekeMinDef50105.09
1
1945
AD 733
2001
2
4
SA 938
CC 2003
3
1
SA 389
SCA
4
[2002]
3 All SA 741
5
SCA
[2005] ZACC 8
;
2005 6 SA 419
6
CC
2011 3SA 487
7
As
that term is used
mKv Minister of Safety and Security
para 49