IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION, MTHATHA]

CASE NO: 1319/2021

In the matter between:

MINUS MHLANGANISO APPLICANT

And

MINISTER OF POLICE RESPONDENT
________________________________________________________________
JUDGMENT
________________________________________________________________
HINANA AJ

1. INTRODUCTION

This is an application for default judgment against the defendant. Mr. Bacen i
appeared on behalf of the plaintiff and there was no appearance on behalf of the
defendant.

2. THE FACTS

2.1 Summons in this matter were issued on 24 November 2022

2.2 The defendant served its notice to defend on 13 March 2023 and filed
same on 10 January 2024.

2.3 On 12 November 2024 , the defendant’s defence was struck out with an
order to pay costs of the application.

2.4 The application for trial date was made on 21 Janu ary 2025 and same
was served on 27 January 2025.

2.5 It is common cause that the defendant has not instituted any interlocutory
application for the re -instatement of the defence. Neither is there any
indication that there is an outstanding application for re scission of the
order that struck out the defence.

3. THE PLEADINGS

3.1 The plaintiff , Mr. Ntuthuzelo Thinga is an adult unemployed male suing the
defendant in his personal capacity .

3.2 The Minister of Police is cited as follows :-

3.2.1 “The Minister of Police

3.2.2 Is statutory and vicariously liable for the wrongful conduct of the
members of the South African Police Service (the police) where such
conduct is performed and/or arises when the police were executing
and exercising their official duties with the defendant.

3.2.3 The conduct sought to be impugned in these proceedings was
performed by the police and were discharging and/or performing their
official duties with the defendant, and

3.2.4 Therefore, the defendant has a direct and substantial interest as these
proceedings ”

3.3 The plaintiff further avers that on 06th day of September 2022 at or near
Stanford Terrace Street in the district of Mthatha, he was arrested in front
of a crowd of people and was subsequently detained at Central Police
Station by one Mr. Mtwa and other members of the South African Police
Service whose full and further particulars are unknown to the plaintiff.

3.4 The plaintiff’s detention lasted for (9) nine days as he was released on bail
on 15 September 2022.

3.5 According to the plaintiff, the defendant is also liable for past court
appearance which took place from 08 September 2022 to 15 September
2022 .

3.6 As a result the plaintiff’s arrest, the plaintiff suffered damages in the
amount of R900 000.00 and there are other ancillary relief sought.

4. THE EVIDENCE

4.1 The plaintiff gave evidence in support of his claim against the defendant.
He stated that

4.1.1 On 6 September 2022 , he got out of his house to fetch his kids. At
about 10H00, he again took another group of kids . He then saw a
white polo and the occupants of the white polo came straight to him.
He was handcuffed and when he asked for the reasons, he was t old
that a young man had complained that he (the plaintiff) had shot him.
He immediately proclaimed his innocence and even requested the
people who were arresting him to contact his brother so as to
investigate the whereabouts of the tracker of the car he was driving .
His request fell on deaf ears.

4.2 He was taken to Central Police Station and at no stage was he shown an
arrest warrant . At Central Police Station, he was taken behind the counter
and handcuffs were removed . His fingerprints were taken betwe en 15H00
and 16H00

4.3 After fingerprints were taken, he was taken to the cells and the condition
of the cells were inhumane . There were about 30 -40 people in the cells.

4.4 He appeared in court on 07 September 2022 and his case was postponed
to 15 September 2022 in custody.

4.5 On 15 September 2022, before the court resumed, he met the prosecutor
who asked him what had happened. After explaining, the prosecutor told
him to go as the person who had laid charges against him entered the
office. He was shown the video footage and the prosecutor said it was not
the plaintiff who was on the video footage. As a result, the prosecutor told
the plaintiff that he was not guilty of any of fence.

5. THE LAW

5.1 The employer may be held liable for the wrongful conduct of his employee
in terms of the principles of vicarious liability. In Mkhize v Martens1 382 2
the following was stated

1 1914 AD

“….a master is answerable for the torts of his servant committed in
the cou rse of his employment , bearing in mind that an act done by
a servant solely for his own interests and purposes and outside of
his authority, is not in the course of his employment, even though it
may have been done during his employment .”

5.2 For decades, the law on various liability developed and in my vie w, this is
settled law3.

5.3 There were two tests set out in the matter of Rabie4 the court formulated
the tests as follows: -

“It seems clear that an act by a servant solely for his own interest
and purposes , although occasioned by his employment, may fall
outside the course or scope of his employment, and that in deciding
whether an act of the servant does so fall, some reference is to be
made to the servant’s intention . The test in this regard is subjective.
On the other hand, if there is nevertheless a sufficiently close link
between the servant ’s act for his own interests and purposes, an d
the business of his master, the master may yet be liable . This is on
objective test ”
Neethling5 et all provided introduction of vicarious liability “Vicarious
liability may in general terms be described as the strict liability of
one person for the delict of another. The former is thus indirectly or
vicariously liable for the damage caused by the latter. This liability

2 At para 319
3 Minister of Police v Rabie 1986 (1) SA 117 (A) , K v Minister of Safety and Security 2005 (3) SA 179
(SCA), F v Minister of Safety and Security 2012 (1) SA 536 (CC).
4 See footnote 3 above
5 Neethling , Potgieter and Visser, the Law of Delict , 5th edition. See also Jonathan Burchell , Principles of
Delict at p 215
applies where there is a particular relation ship between two
persons….”

5.4 As stated , the onus is on the plaintiff to allege and prove that the
employee committed the delict whilst acting within the course and
authority o f his employment as a servant of the respondent. In doing so,
the plaintiff must allege and prove that

5.4.1 The employee who committed the delict was an employee of the
defendant6,

5.4.2 The scope of the employee’s duties at the time of the commission of
delict7.

5.4.3 That the employe performed the delictual act in the course and scope
of the employee’s employment8.

6. ANALYSIS OF THE EVIDENCE AND PLEADINGS

6.1 In my view , the onus is on the plaintiff to prove on a balance of
probabilities that the master is vicariously liable for the wrongs committed
by his employee whilst the employee was acting within the course of and
authority as a servant of his master. Absent that a verment, I cannot find in
favor of the plaintiff .

6.2 In this matter, the plaintiff did not make any averment regard ing the liability
of the Minister of Police as a result of wrongful actions of the members of

6 Gibbins v Williams, Muller, Wright and Mostert Ingelyf 1987 (2) SA 82 (T).
7 Minister of Police v Mbilini 1983 (3) SA 705 (A), Van der Berg v Coopers & Lybrand Trust (Pty) Ltd 2001
(2) SA 242 (SCA), Minister of Safety and Security v F 2011 (3) SA 487.
8 Masuku v Mdlalose 1998 (1) SA 1 (SCA), Stadsraad van Pretoria v Pretoria Pools 1990 (1) SA 1005 (T),
Midway Two Engineering & Construction Services BK v Transvaal BpK 1998 (3) S A 17 (SCA) p 29.
the South African Police while acting within the course and authority as
servants of the Minister of Police.

6.3 In terms of Rule 5 “Every pleading shall contain a clear and concise
statement of the mate rial facts upon which the pleader relies for his
claim… .”

7. CONCLUSION AND ORDER

7.1 I have made a finding that the particulars of claim lack a nece ssary
averment to hold the Minister of Police vicariously liable for the delictual
action committed by his employees while acting within the ir course and
authority as servant of the Minister of Police.

7.2 Accordingly, the plaintiff has failed to this regard an d the following order is
made: -

7.2.1 The application for default judgment is refused .

7.2.2 The plaintiff is granted leave, if so advised, to amend his particulars of
claim.

7.2.3 There shall be no order as to costs.


________________
M N Hinana
Acting judge of the High Court


Appearances : -

Mr. Baceni , Counsel for the plaintiff

No appearance for the defendant

Instructed by:
S Zangqa Inc.
Unit 1 Glen combe Flats
No 45 Leeds Road
MTHATHA
Ref M r. Zan gqa

Date of hearing: 16 April 2025
Date of delivery: 29 April 2025