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1992
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[1992] ZASCA 76
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Macala v Town Council of Maokeng (15/91) [1992] ZASCA 76; 1993 (1) SA 434 (AD); [1993] 1 All SA 112 (A) (22 May 1992)
CASE NO 15/91
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the matter between:
E Z
MACALA
Appellant
versus
TOWN COUNCIL OF MAOKENG
Respondent
CORAM
: HOEXTER, VIVIER et GOLDSTONE JJA
DATE HEARD
: 14 May 1992
DATE DELIVERED
: 22 May 1992
2
JUDGMENT
GOLDSTONE JA
:
The appellant, Ephraim Zitha Macala, brought an
action in
the Orange Free State Provincial Division in
which he claimed compensation
from the respondent, the
Town Council of Maokeng, and against Samuel Mthembu,
a
municipal policeman who was in the employ of the
respondent. The claim
arose out of injuries sustained
by the appellant when he was shot in the
stomach by
Mthembu. By consent the learned Judge a
quo
(Malherbe
J)
made an order in terms of Rule 33(4) that the merits
of the appellant's claim
against each of the defendants
should be determined first and that the
question of
damages should stand over for later determination.
The learned
Judge a
quo
held that Mthembu had
3
unlawfully shot the appellant and was therefore
liable to compensate him for the damages he had sustained. However, he held
further
that when he shot the appellant, Mthembu was not acting in the course
and scope of his employment with the respondent, and that the
latter was not
jointly liable with Mthembu to compensate the appellant, with the leave of the
Court a
quo
, the appellant appealed to this Court against that
finding.
The learned Judge a
quo
accepted the version given by the appellant
and his witnesses. That finding was not questioned in this Court and the appeal
therefore
must be determined on the basis thereof.
On the evening in question, 31 May 1986, Sarah Mohlokoane ("Sarah") resided
in a room in the house of John Dinga ("Dinga"). Jacob
Pitso ("Pitso") lived in a
room in the back yard of the same premises. For some time there had been an
intimate relationship between
Pitso and Sarah. He usually slept with her in her
room.
4
That night he went to Sarah's room. He took off
his shoes and socks and whilst he was talking to Sarah two municipal policemen
entered
the room. One of them was Mthembu. At that time Mthembu was not on duty.
His companion, however was on duty. Both were in uniform.
They forcibly took him
out of the room to a police vehicle. They drove to an isolated spot where the
two policemen assaulted him.
They left him there and drove away. He walked back
to the home of Dinga. He went to Sarah's room to collect his shoes. After Pitso
had knocked on the door and opened it he heard Sarah say to Mthembu that the
latter should hit and shoot him. Mthembu hit him on
the nose. He fell outside
the room. Dinga's two sons, Petrus and Samuel, came out of the lounge and told
Pitso to leave. He walked
some distance in the direction of his room. He heard
two shots. The second one hit him in the thigh.
That same evening the appellant was visiting
5
the two younger Dingas and their wives. At about
22hl5 Pitso knocked on the lounge door and said someone was fighting with him
and
that all he wanted was to collect his shoes from Sarah's room. The Dinga
boys went out and the appellant followed them intending
to go to the toilet. As
he walked out of the lounge door he was shot in the stomach by Mthembu.
According to Samuel Dinga, he and his brother heard someone scream outside
the lounge door. They went to investigate and found Pitso.
He appeared to have
been assaulted. He told them he wanted his shoes, petrus Dinga knocked on
Sarah's door. It was opened and he
saw Mthembu standing there with a firearm in
his hand. He was wearing his uniform. Petrus Dinga told both Mthembu and Pitso
to leave.
Mthembu pushed the two Dingas aside and Sarah screamed "Skiet die
honde". Samuel Dinga ran away. He heard two shots being fired and
later found
appellant and Pitso who had both been
6
wounded.
In the course of his able argument on behalf of
the appellant, Mr Ploos Van Amstel submitted that there was really one
continuous course of conduct by Mthembu on that evening. He
argued that there
was a probability that Sarah had arranged with Mthembu that he would rid her of
the attentions of Pitso and that
Mthembu did so, in the first place, by
abducting and assaulting him and later by shooting him. In entering into that
arrangement,
so the submission continued, Sarah knew and took advantage of
Mthembu's powers as a policeman and Mthembu in fact acted pursuant
to those
powers.
This approach to the facts was not suggested in the Court a
quo
and it
was not put to Sarah. In any event it cannot assist the appellant. At the time
he was shot, Pitso was already on his way to
his own room. He was making no
attempt to enter Sarah's room or in any way to interfere with her. Furthermore,
it was the second
7
shot fired by Mthembu that hit Pitso. The first
shot struck the appellant. Neither of those shots could have been fired pursuant
to
the terms of the suggested arrangement between Sarah and Mthembu.
Mr Ploos Van Amstel correctly conceded that when he shot the appellant,
Mthembu was not acting in the course and scope of his employment
with the
respondent. Whether or not the shooting was pursuant to an arrangement between
Sarah and Mthembu, Mr Ploos Van Amstel submitted
that the respondent was liable
to compensate the appellant because Mthembu's actions were the consequence of
the risk created by
the respondent in having appointed Mthembu as a municipal
policeman and in providing him with a firearm and a uniform. In support
of this
approach counsel relied upon the majority judgment of Jansen JA in
Minister
of Police v Rabie
1986(1) SA 117(A). In particular we were referred to the
following passage at 134 I - 135 B:
8
"By approaching the problem whether Van der Westhuizen's acts
were done 'within the course or scope of his employment' from the angle
of
creation of risk, the emphasis is shifted from
the precise nature of his intention and the
precise nature
of the link between his acts and
police work, to the dominant question
whether
those acts fall within the risk created by the
State. By
appointing Van der Westhuizen as a
member of the Force, and thus clothing him
with
all the powers involved, the State created a
risk of harm to others,
viz the risk that Van
der Westhuizen could be untrustworthy and
could
abuse or misuse those powers for his own
purposes or otherwise, by
way of unjustified
arrest, excess of force constituting assault
and
unfounded prosecution. Van der
Westhuizen's acts fall within this
purview
and in the light of the actual events it is
evident that his
appointment was conducive to
the wrongs he committed."
I would make the following comments with regard to this passage:
9
1. The reference to "unjustified arrest, excess of force constituting assault
and unfounded prosecution" related to the facts of
the
Rabie
case. There,
unlike the present case, the
policeman announced
that he was a policeman, that he was arresting Rabie and taking him to the
police station. 2. In their context
the words in the passage "to abuse or misuse
those powers" could only have been a reference to powers exercised
qua
policeman, ie in relation to police work. That follows from an earlier
passage in the judgment where Jansen JA stated (at 134 C-E):
"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
10
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."
In other words the cardinal question is always whether the policeman is
acting in the course and scope of his employment as such and
in order to find
that he was so acting, his acts must have some connection with police work,
whether subjectively or objectively
viewed. 3. That the "powers" referred to by
Jansen JA related to police powers also follows from the judgment of this Court
in
Minister of Police v
11
Mbilini
1983(3) SA 705 (A) at 710 H - 711 A where it
was held that when a policeman commits
a wrongful act while he is on duty it does not
necessarily
mean that he was acting in the
course and scope of his employment; and no
onus
is cast upon the State to prove that the act
was of a personal
nature wholly outside the
scope of his employment. That judgment
was
expressly followed by Jansen JA in the
Rabie
case (at 132
F-H).
4. It follows that the "creation of risk"
principle is directly
related to the enquiry as
to whether the policeman was acting in
the
course and scope of his employment as such.
In the present case Mthembu said nothing at all when he shot at the plaintiff
to the effect that he was acting as a policeman. There
is no evidence to
suggest
12
that in acting as he did he subjectively intended
to exercise police powers. The only objective facts which could be relied upon
by
Mr Ploos van Amstel are that Mthembu was wearing a police uniform, and that
he used an official firearm. It must be stressed that
the involvement of the
fellow policeman and the use of the police vehicle occurred prior to and was
totally unrelated to the shooting
of the appellant. In my judgment, in the
circumstances of this case, the wearing of a police uniform and the use of an
official firearm
do not established that Mthembu, in shooting the plaintiff (or
it may added, Pitso) was acting in the interests of or about the business
of the
respondent. His acts did not fall within the risk of harm created by the
respondent in appointing him as a municipal policeman.
Wherever the limits of
liability based on the creation of risk in this context may be, I have no doubt
that the acts of Mthembu do
not fall within them. I have
13
reached this conclusion with regret as the
plaintiff was an unfortunate and innocent victim who sustained substantial
damages by reason
of the unlawful act of the respondent's employee.
The appeal is dismissed with costs.
R J GOLDSTONE JUDGE OF APPEAL HOEXTER JA) VIVIER JA) CONCUR