Isaacs v Centre Guards cc Trading As Town Centre Security (8286/02) [2003] ZAWCHC 45; [2004] 1 All SA 221 (C); [2004] 3 BLLR 288 (C); (2004) 25 ILJ 667 (C) (11 September 2003)

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[2003] ZAWCHC 45
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Isaacs v Centre Guards cc Trading As Town Centre Security (8286/02) [2003] ZAWCHC 45; [2004] 1 All SA 221 (C); [2004] 3 BLLR 288 (C); (2004) 25 ILJ 667 (C) (11 September 2003)

Reportable
in the high court of South Africa
(cape of good hope provincial division)
Case no 8286/02
In the matter between:
Noor moghamat
Isaacs
Plaintiff
and
centre guards cc
trading
as
Town
Centre Security
Defendant
judgment: delivered 11
September 2003
Griesel
J:
In
a shooting incident that occurred shortly after midnight on 19 June
2002 in Mitchell’s Plain, the plaintiff suffered perma­nent
damage to his spinal cord, resulting in complete paraplegia. The
shot (or shots) in question came from a firearm, wielded at the
time
by a security guard employed by the defendant, one Lumaphi
Maqazolo
(
Maqazolo
). The circum­stances under
which the shot(s) came to be fired formed the sole factual dispute
between the parties and I shall
return to this aspect later in this
judgment.
1
Based
on these facts, the plaintiff alleges in his particulars of claim
that he was unlawfully assaulted by Maqazolo, who was acting
within
the course and scope of his employment with the defen­dant. He
accordingly claims damages from the defendant for loss
flowing from
his said injuries.
In
the plea filed on behalf of the defendant, various alternative
defences are raised. Most importantly, the defendant denies that
Maqa­zolo
was acting within the course and scope of his
employment with the defen­dant. In the alternative, the
defendant pleads as follows:
‘
9.1 Defendant is charged with providing security services to
vari­ous stores conducting business from Mitchell’s Plain Town
Centre, including Diskom.
Plaintiff burgled the Diskom store situate in the Mitchell’s
Plain Town Centre;
Defendant’s employee responded to the aforesaid burglary;
Plaintiff fled the scene of the burglary;
Defendant’s employee pursued the plaintiff on foot;
Plaintiff was apprehended by Defendant’s employee whilst in
possession of stolen goods;
Once apprehended, a scuffle ensued between the plaintiff and the
defendant’s employee during which scuffle a shot went off wounding
the plaintiff.’
In response to
paragraph 9.7 of the plea, the plaintiff filed a repli­cation,
alleging that, if those facts are proved, then
the defendant’s
employee was in any event negligent.
By
agree­ment between the parties, the present stage of the
pro­ceedings was limited, in terms of Rule 33(4), to the merits
of the claim only, the
quantum
standing over for later
deter­mination, if need be.
Issues
In order to
establish vicarious liability on the part of the defendant, the
plaintiff must prove that Maqazolo (a) was employed
by the
defendant; (b) committed a delict against the plaintiff; and
(c) acted within the course and scope of his employment
at the
relevant time.
2
As far as the
first issue is concerned, it is common cause that Maqa­zolo was
indeed employed by the defendant at the relevant
time. With regard
to the second issue, it is trite law that every in­fringement of
the bodily integrity of another is
prima facie
unlawful. Once
such infringement is proved, as here, the
onus
shifts to the
wrongdoer to prove some or other ground of justification.
3
In
the present case, the defen­dant, in the above-quoted para 9 of
the plea, pleaded a variety of factual detail of which the
legal
relevance is doubtful. What the defendant did
not
do, was to
plead any of the traditional grounds of justification (such as
necessity, self-defence, statutory authority, and suchlike),
so as
to rebut the
prima facie
in­ference of unlaw­ful­ness
arising from the actions of Maqazolo. Instead, the defence as
pleaded, and as explained
in evidence, appears to be that Maqa­zolo
did not voluntarily discharge the firearm, but that the shot was
fired acci­dentally
during the course of the scuffle which
ensued when the plaintiff tried to grab the firearm from Maqazolo’s
hand.
Apart
from the fact that Maqa­zolo's version in this regard was
disputed by the plaintiff, the explanation does not, of course,
exonerate Maqa­zolo of all blame. Instead, it raises the further
enquiry whether or not Maqa­zolo was in any event negligent
in
relation to the shooting of the plaintiff, as was alleged in the
plaintiff’s replication.
The two main protagonists gave conflicting versions as to the events
that preceded the shooting. The plaintiff testified that,
on the
night in question, he heard that someone had broken in at Diskom, a
store in the Mitchell’s Plain Town Centre, and that
there were
items to steal. He, together with a friend, one Du Preez,
accordingly went to the scene of the burglary, intending to
profit
from this ‘windfall’. Upon their arrival, they found two other
persons on the scene, already in the process of helping
themselves
to the loot. The plaintiff and Du Preez proceeded to join in, the
plaintiff standing guard outside. At some stage, the
plaintiff saw
the security guard, Maqazolo, ap­proaching them. The plaintiff
immediately sounded the alarm to his accomplices
inside the shop and
he then beat a retreat, running down the passage that can be seen on
the photograph, Exhibit A1. Maqazolo pursued
the plaintiff and fired
three or four shots with his firearm, after which the plaintiff ran
around the corner to the nearby Engen
garage, where he collapsed and
lost con­sciousness. He showed the court a mark to the front of
his left shoulder, just below
the clavicle, where one of the bullets
apparent­ly struck him. He claimed that there was also a further
mark to his spine on
his lower back, but it is not clear whether
this was an entry or an exit bullet wound.
Maqazolo,
on the other hand, testified that he was on duty at the relevant
time, dressed in his
‘usual uniform’.
He arrived on the
scene of the burglary at Diskom, saw two persons stealing items from
the shop and instructed them to stand still.
They disregarded his
instruction and started running away. He drew his firearm and fired
three warning shots. He called for assis­tance
on his
walkie-talkie radio and pursued the plaintiff, who turned around and
threw a wheel spanner at him. He eventually apprehen­ded
the
plaintiff at the Engen garage, where a struggle ensued. The
plaintiff tried to hit the wit­ness with a hammer, but missed.
The plaintiff thereupon attempted to grab the firearm from the hand
of Maqazolo, a shot went off, striking the plaintiff, who collapsed.
Maqazolo was adamant that he did not pull the trigger.
Neither
of the two witnesses made a particularly good impression on me in
the witness box. Be that as it may, in the view I take
of the
matter, it is not necessary for me to resolve the factual disputes
between them. I am satisfied that, on either version,
the plaintiff
has succeeded in establishing negligence on the part of Maqazolo. On
his own version, Maqazolo was running around
with a loaded firearm
in his hand, with the safety catch disengaged. He became embroiled
in a scuffle with the plaintiff, still
holding the loaded firearm in
his hand. He ought to have foreseen that a person in the position of
the plaintiff might get injured
in the process and ought to have
taken steps in order to avoid such harm by, for example, putting
away the firearm or disabling
it by means of the safety catch. His
failure to do so ineluctably leads to the conclusion that he was
negligent and that such negli­gence
caused the plaintiff’s
injuries.
I
conclude, therefore, that all the requirements for delictual
liability on the part of Maqazolo have been established, thus
clearing
the way for a consideration of the third and final issue
regarding vicariously liability, namely whether or not Maqazolo was
acting
within the course and scope of his employ­ment when the
plaintiff was injured.
Course and Scope of Maqazolo’s Employment
The
defendant’s denial that Maqazolo acted within the course and scope
of his employment is based on the facts that the delict
in question
was committed with a firearm (a) of which the defendant was not
the owner; (b) which was not issued by the
defendant to
Maqazolo; and (c) which Maqazolo had in his possession without
the know­ledge and consent of the defendant.
In support of the
defence as pleaded, the defendant relies on the terms of Maqazolo
’s
written conditions of employment, as amplified by an addendum,
signed by Maqazolo on 11 March 2002. In the said addendum Maqazolo
acknowledged the following:
‘
Under no circumstances will I or any other Town Centre
Security personnel, be allowed to be in possession of, or use a
company or
personal firearm whilst on duty at any site in the
Mitchell’s Plain Town Centre.’
In this context,
reference was also made to clause 7(B) of the conditions of
employment, which reads as follows:
‘
Assaulting of any suspects or persons is completely taboo in
public, and it will not be tolerated of any reports (sic) that
reaches
(sic) this office of such instances, only minimum force are
(sic) acceptable when necessary.’
It
was common cause that, after the incident in question, Maqazolo
received a final warning in writing, based on
‘unsatisfactory
perfor­mance as a security officer in disobeying company policy
and rules, which forbids being in possession
of a privately owned
firearm whilst on duty at a contracted site on 19/06/2002’.
It
was common cause further that the firearm in question was indeed
Maqazolo’s personal property, which he had legally acquired
some
years ago for self-protection after an attack on him by some
‘gangsters’
.
Against this
background, the defendant’s argument followed a simple line: the
scope of Maqazolo’s employment is defined by his
employment
contract.
In casu,
it is common cause that he was
specifically prohibited in terms of his contract to be in possession
of, or to use, a firearm whilst
on duty.
Ergo,
Maqazolo acted
outside the scope of his employment, with the result that the
defendant is not vicariously liable.
The question whether a particular employee was acting within the
course and scope of his employment is often easier to pose than
to
answer, as is amply illustrated by the plethora of cases dealing
with this problem.
4
As was stated by Watermeyer CJ in the
locus classicus,
namely
Feldman (Pty) Ltd v Mall,
5
after an exhaustive discussion of the relevant principles and
authorities:
‘
It will be seen from what I have said that the dividing line
which separates acts within the scope of a servant’s employment
from
those without is one impossible to draw with certainty and in
respect of it the words of Andrews J, used by him in relation to the
subject of proximate cause in the famous
Palsgraf
case
[
Palsgraf v Long Island RR
] (59 ALR [1253 at] 1262) are very
much in point. “We draw”, he said, “an uncertain and wavering
line but draw it we must
as best we can”.’
6
The
‘standard
test’
or
‘general principle’
with regard to
vicarious liability was authoritatively restated by Kumleben JA in
Minister of Law and Order v Ngobo
,
7
where the learned Judge
inter alia
said the following:
'The critical consideration is therefore whether the wrongdoer
was engaged in the affairs or business of his employer. (I shall

refer to it as the “standard test” or “general principle”.)
It has been consistently recognised and applied, though –
since it
lacks exactitude – with difficulty when the facts are close to the
borderline.’
In
Minister of
Police v Rabie
8
the court drew attention to subjective and objective approaches in
applying the standard test:
'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. And it may be useful
to add that according to the Salmond test (cited by Greenberg
JA in
Feldman (Pty) Ltd v Mall
1945 AD 733
at 774):
“
a
master… is liable even for acts which he has not authorised
provided that they are so connected with acts which he has
authorised
that they may rightly be regarded as modes – although
improper modes – of doing them…”.’
9
There are many
instances in our law reports where employers were held liable, even
though the employee in question disobeyed instructions
and performed
forbidden acts.
10
It is no answer, therefore, simply to say – as the defendant seeks
to do – that Maqazolo was forbidden to use a firearm on
duty and
therefore the defendant is not liable. The standard question
remains: was the employee engaged in the affairs of the employer
at
the time the delict was committed?
In
answering this question in the context of forbidden acts, an
important distinction is drawn between a prohibition which limits
the
sphere of employment,
on the one hand, and one which only
deals with
conduct within the sphere of employment,
on the
other.
11
The general rule is that an em­ployee who disregards a
prohibition which limits the sphere of his employ­ment is not
acting
in the course of his employment, but an employee who
disregards a prohibition which only deals with his conduct within
the sphere
of his employment is not acting outside the course of his
employment.
12
To conclude as far
as this aspect is concerned, the position is neatly summarised by
Neethling
et al
13
as follows:
‘
The employer may accordingly only escape vicarious liability
if the employee, viewed subjectively, has not only exclusively
pro­moted
his own interests, but, viewed objectively, has also
completely disengaged himself from the duties of his contract of
employment.’
Discussion
Turning
now to the facts of the matter at hand, the undisputed evidence
shows that the work entrusted to Maqazolo by the defen­dant
was
to act as a security guard, protecting the premises of the
defen­dant’s clients in the Mitchell’s Plain Town Centre.
Maqazolo was dressed in the
‘usual uniform’
issued to him
by the defen­dant and he was actually on duty at the relevant
time, doing what he was paid to do. This fact alone
is ordinarily
prima facie
indicative of vicarious liability on the part of
the employer.
14
I am
satisfied, moreover, that the prohibition against the use of a
firearm on duty dealt only with Maqo­zolo's
conduct within
the sphere
of his employ­ment, and did not affect the
sphere
of his employment
as such. His position may be compared with
that of a driver who is prohibited from ex­ceeding the speed
limit or from drinking
alcohol while on duty. Should the driver
disobey such prohibition while on duty, there can be little doubt
that his employer would
be vicariously liable for delicts resulting
from his conduct.
15
Objectively
speaking, therefore, it appears on an overwhelming balance of
probabilities that Maqo­zolo was indeed engaged in
the affairs
or business of his employer at the time when the delict was
committed.
As
far as the subjective test is concerned, it cannot, in my view, be
argued – nor did the defendant’s counsel attempt to do
so –
that, in pursuing and apprehending the plaintiff, Maqozolo intended
to do anything other than perform the work entrusted
to him by his
employer; in other words, he was not on some
‘frolic of his
own’
. Indeed, one may ask rhetorically, if he was not engaged
as a servant upon his master's business at the time of the delict,
on
whose business was he thus engaged?
16
The
fact that, in the present case, Maqazolo was actually on duty
and
was per­forming his employer’s work when the delict was
committed, distin­guishes the present case from other recent
decisions
where the employer was held not vicariously liable for the
relevant employee’s delict.
17
It
follows, in my view, that the plaintiff has succeeded in
establishing vicarious liability on the part of the defendant.
Order
For
the reasons set out above, it is ordered as follows:
It is declared that the defendant is liable to the plaintiff for
such damages as the plaintiff may prove he has suffered as a result
of the shooting incident giving rise to the claim.
The defendant is directed to pay the plaintiff’s costs of suit
in relation to the merits of the claim.
B
M Griesel
1
See
para below.
2
See
e.g. Neethling Potgieter & Visser,
Law
of Delict
4
th
ed (Butterworths 2001) 374 – 9.
3
Mabaso
v Felix
1981
(3) SA 865
(A) 873E – 874E;
Malahe
and Others v Minister of Safety and Security and Others
[1998] ZASCA 64
;
1999 (1) SA 528
(SCA) 533J – 534A, 540F – H.
4
See
e.g Neethling
et
al, op cit,
(n 2)
377 – 9;
LAWSA
First
Reissue Vol 8(1), para 24 and the authorities referred to in both
these works; and, more recently,
Minister
van Veiligheid en Sekuriteit v Phoebus Apollo Aviation Bpk
2002
(5) SA 475
(SCA);
Minister
van Veiligheid en Sekuriteit v Japmoco BK
2002 (5) SA 649
(SCA);
Bezuidenhout
NO v Eskom
2003
(3) SA 83
(SCA);
Costa
Da Oura Restaurant (Pty) Limited t/a Umdloti Bush Tavern v Reddy
[2003]
JOL 10764
(SCA).
5
1945
AD 731
at 750.
6
Also
quoted with approval by
Farlam
JA
in
Minister
van Veiligheid en Sekuriteit v Phoebus Apollo Aviation Bpk
(n
) para [8] at 480H.
7
[1992] ZASCA 172
;
1992
(4) SA 822
(A) at 827B – C, see also at 833G – I. See also
Bezuidenhout
NO v Eskom
(n )
para [19] at 92G – 93A.
8
1986
(1) SA 117
(A) at 134D – E.
9
Although
Rabie’s
case
was overruled in
Ngobo’s
case
(n ), this passage was subse­quently quoted with approval
by
Nienaber
JA
in
Minister
van Veiligheid en Sekuriteit v Japmoco BK
(n ) para [11] at 659B – G.
10
In
Japmoco’s
case
(n ) para [11] at 659A–B
Nienaber
JA
described
this principle as trite (
‘gemeenplase
en behoef dus geen bewysplase nie’
).
See also
ABSA
Bank Ltd v Bond Equipment (Pretoria) (Pty) Limited
2001
(1)
sa
372 (
sca
)
para [5] at 378D.
11
Ngubetole
v Administrator, Cape and Another
1975 (3) SA 1
(A) at 10E
et
seq
and authorities referred to therein.
12
Plumb v Cobden Flour Mills
Limited
1914 AC 62
at 67; referred to with approval in
Feldman
v Mall
(n )
at 762;
Ngubetole
v Administrator, Cape and Another
(n ) at 11A – B.
13
Op
cit,
(n
2) 377.
14
See
Neethling
et
al,
(n
2)
op
cit,
379
n 135; Neethling and Potgieter ‘Risikoskepping by Middel­like
Aanspreeklikheid' 1993
THRHR
500 at 504.
15
Compare
Feldman
v Mall,
(n )
at 741 – 2 and 763.
16
Compare
Ngubetole
v Administrator, Cape and Another,
(n )
at 13A.
17
See
e.g.
Ngobo’s
case
(n 7)
at
826C;
Columbus
Joint Venture v ABSA Bank Ltd
2000
(2) SA 491
(W) 512F – H;
Ess
Kay Electronics Pte Ltd and Another v First National Bank of
Southern Africa Ltd
2001
(1) SA 1214
(SCA) para [19] at 1221H; the
Phoebus
Apollo Aviation
case (n4) para [10] at 481B;
Reddy’s
case
(n 4).