IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION, MTHATHA]
CASE NO: 5724/2022
In the matter between:
NTUTHUZELO THINGA PLAINTIFF
And
MINISTER OF POLICE DEFENDANT
________________________________________________________________
JUDGMENT
________________________________________________________________
HINANA AJ
1. INTRODUCTION
This is an application for default judgment against the defendant. Mr. Baceni
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 The defendant’s plea was served on the plaintiff’s attorneys on 04 August
2023.
2.4 On 12 November 2024 , the defendant’s defence was struck out with an
order to p ay costs of the application.
2.5 The application for trial date was made on 21 January 2025 and same
was served on 27 January 2025.
2.6 It is common cause that the defendant has not instituted any interlocutory
application for the re -instatement of the defenc e. Neither is there any
indication that there is an outstanding application for rescission 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 b e 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 me mbers 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 of the plaintiff’s arrest, the plaintiff suffered damages in the
amount of R900 000.00 and there are other ancillary relief sought.
3.7 In his particulars of claim a globular amount of R900 000.00 is claimed
which he contends to be reasonable and fair.
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 occup ants of the white polo came straight to him.
He was handcuffed and when he asked for the reasons, he was told
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 between 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 ent ered 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 offence.
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 the
following was stated : -
“….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 .”2
5.2 For decades, the l aw 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 and 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”
1 1914 AD 382
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
5.4 Neethling5 et all provided an introduction on vicarious liability and said the
following: -
“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 applies where there is a particular relation ship between
two persons….”
5.5 The onus is on the plaintiff to allege and prove that the em ployee
committed the delict whilst acting within the course and authority of his
employment as a servant of the respondent. In doing so, the plaintiff must
allege and prove that
5.5.1 The employee who committed the delict was an employee of the
defendant6,
5.5.2 The scope of the employee’s duties at the time of the commission
of delict7.
5.5.3 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
5 Neethling , Potgieter and Visser, The Law of Delict , 5th edition. See also Jonathan Burchell , Principles of
Delict at p 215
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) SA 17 (SCA) p 29.
by his employee whilst the employee was acting within the course and
authority of his employment as a servant of his master.
6.2 In this matter, the plaintiff did not allege any averment regard ing the
liability of the Minister of Police as a result of wrongful actions of t he
members of the South African Police while acting within the course and
authority as servants of the Minister of Police.
6.3 In terms of Rule 9 “Every pleading shall contain a clear and concise
statement of the mate rial facts upon which the pleader relies for his
claim… .”
6.4 In my view , the plaintiff has not complied with this rule in so far as it
relate s to pleading vicarious liability of the defendant.
6.5 This court invited Mr. Baceni to make submissions regarding the lack of
the necessary averment to allege vicarious liability . He submitted that this
may be led in evidence. I do not agree with this submission. It is the duty
of the plaintiff to prove and allege that the employer is vicariously liable .
7. Absent that averment, I cannot find i n favor of the plaintiff.
8. In view of the position I take, I need not deal with the quantum of damages.
9. CONCLUSION AND ORDER
9.1 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 s committed by his employees while acting within the ir course and
authority as servant s of the Minister of Police.
9.2 Accordingly, the plaintiff has failed to this rega rd an d the following order is
made: -
9.2.1 The application for default judgment is refused .
9.2.2 The plaintiff is granted leave, if so advised, to amend his particulars
of claim.
9.2.3 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