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1994
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[1994] ZASCA 75
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Moodley v Minister of Law and Order (615/92) [1994] ZASCA 75 (23 May 1994)
Case No 615/92 /MC
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION
)
In the matter between
THIRUMANLY MOODLEY
APPELLANT
- and -
MINISTER OF LAW AND ORDER
RESPONDENT
CORAM
: BOTHA, HEFER, NESTADT, NIENABER JJA et NICHOLAS
AJA.
HEARD
: 9 May 1994.
DELIVERED
: 23
May 1994.
JUDGMENT
NICHOLAS AJA.
2
NICHOLAS AJA
:
Mr K Adam was a police constable in the South African Police attached to the
Mobile Unit based at the Laudium Police Station near
Pretoria. At 21h45 on 5
October 1989 he reported for duty at the police station and was assigned to
guard the house of a member of
parliament. During the evening he developed
stomach pains and left his post with permission in order to go to a toilet at
the police
station. Finding all the toilet facilities occupied, he went to the
house of Miss Thirumanly Moodley, a young woman of some 25 years
with whom he
had previously had an affair and who lived near the police station. He was
carrying in a holster the service pistol
which had been officially issued to him
for use in connection with his police duties. This he removed from the holster
and left outside
when he entered the toilet in the yard of the
3
Moodley premises. When he emerged he picked up the pistol. Noticing Moodley
in the kitchen of the house he called her to come outside.
He put his arms
around her, still holding the pistol in his hand as he did so. The pistol went
off. In consequence Moodley sustained
serious injuries.
Arising out of this incident, Moodley instituted an action for damages in the
Transvaal Provincial Division against the Minister of
Law and Order as the first
defendant and Adam as the second defendant. The plaintiff's particulars of claim
contained the following
allegations in regard to the liability of the defendants
:
"4.
On or about the 5th day of October 1989 and at LAUDIUM, TRANSVAAL the Second
Defendant wrongfully, unlawfully and intentionally shot
the Plaintiff with his
service pistol.
4
5.
At all material times the Second Defendant was employed by the First Defendant
and acted within the course and scope of such employment.
7.
As a result of such shooting the plaintiff suffered a gun shot wound in her back
resulting in spinal damage and permanent paralysis
from the waist down
..."
She claimed payment of damages totalling R924 145-12.
In
a joint plea the defendants denied each of the allegations contained in
paragraphs 4, 5, 6 and 7 of the particulars of claim.
The trial was held before SWART J on 23 April 1992. No evidence was led, but
there was submitted to the Court in terms of Rule 33(1)
of the Rules of
Court
5
a written statement of agreed facts. It reads as follows:
"The parties to the above action agree upon the following statement of facts
for the adjudication of the Court:
1.
2nd Defendant was, at all times relevant to this action, a police constable in
the South African Police and, as such, employed by
the 1st
Defendant.
2.
Each and every of 2nd Defendant's negligent acts or omissions set out in
paragraph 3 hereof was the direct cause of the injuries
sustained by Plaintiff
when the service pistol (a 9mm Walther P38 double action pistol) issued to 2nd
Defendant by 1st Defendant
was accidentally fired on the 5th of October
1989.
6
3.
The 2nd Defendant negligently caused the injuries sustained by the Plaintiff
on the 5 th day of October 1989, in that -
3.1 contrary to 1st Defendant's standing orders
regarding the safe handling
of firearms issued
to officers, 2nd Defendant
-
3.1.1
carried his
service pistol with a round in the chamber, the hammer cocked and without
engaging its safety mechanism, thereby making
it possible for the service pistol
to be fired accidentally;
3.1.2
failed to take
all reasonable steps to ensure that his service pistol is, at all times, safe
and cannot be fired accidentally;
3.2 2nd Defendant tried to hug Plaintiff while his
pistol was not in his
holster but held in his
hand and while the service pistol was in
the
unsafe condition described in sub-paragraph
3.1.1.
7
4.
Plaintiff's injuries were caused partly by her own fault and the parties
furthermore agree that, in terms of section 1 of the Apportionment
of Damages
Act, 1956, any damages recoverable by Plaintiff from either of the Defendants
shall be reduced by the Honourable Court
by the deduction therefrom of 25% of
the amount of such damages.
5.
It is 2nd Defendant's duty as a police officer in the employment of the 1st
Defendant at all times (unless prevailing circumstances
are such that the 2nd
Defendant may be justified in using the service pistol in the course of the
execution of his duties) to -
5.1 carry his service pistol in such a manner that it cannot be fired
accidentally and to insure that
-
5.1.1
his service
pistol does not have a round in the chamber; and
5.1.2
the hammer of his service pistol is uncocked;
and
5.1.3 the safety mechanism of his service
8
pistol is engaged; 5.2 take all reasonable steps to ensure that his service
pistol is safe and cannot be fired accidentally.
6.
At the time when the shot which injured Plaintiff was fired there were no
circumstances which justified 2nd Defendant to use his service
pistol in the
execution of his duties and, for that reason, 2nd Defendant had to comply with
his duties regarding the safe use, handling
and carrying of his service pistol
as more fully set out in paragraphs 5.1 and 5.2 hereof.
7.
The relevant events which preceded the accidental shooting of the Plaintiff
on the 5th of October 1989 were the following:
7.1 2nd Defendant, dressed in full uniform, was booked on duty at the Laudium
police station at 21h45 and was issued with a service
pistol and 8 rounds of 9mm
ammunition, all of which form part of the standard equipment issued
to
9
all officers in the employment of the 1st Defendant for use by such officers in
the execution of their duties as police officers;
7.2 2nd Defendant was posted on guard duty at the home of a member of
parliament;
7.3 later that evening, while still on duty, 2nd Defendant developed a stomach
ache and requested permission to leave his post and
to return to the police
station to use the toilet;
7.4 2nd Defendant was granted the permission requested and was transported by
police van to the police station where he found that
the toilets at the police
station were all engaged;
7.5 Plaintiff's house is near the police [station] and 2nd Defendant, being
acquainted with Plaintiff (because he previously had
an affair with her), went
to Plaintiff's house to use the toilet which is situated outside, at the back of
the house;
7.6 2nd Defendant removed his service pistol from his holster before using the
toilet, leaving it lying outside the toilet;
7.7 after using the toilet, 2nd Defendant left the toilet and picked up his
service pistol from the place where he left
it;
10
7.8 before 2nd Defendant replaced the service pistol into his holster, he
noticed Plaintiff in the kitchen, called her outside and,
after she came out of
the house, he tried to hug her by placing his arms around her while holding the
service pistol in his hand
in such a manner that the service pistol was held
behind her back;
7.9 whilst in the position described in the previous paragraph, the service
pistol was accidentally fired, injuring Plaintiff and
2nd Defendant;
7.10 2nd Defendant was never booked off duty and was still on duty when the shot
was fired.
8.
In view of the aforesaid facts the parties
agree
that -
8.1 this Court should grant judgment against 2nd
Defendant for -
8.1.1 payment of an amount equal to 75% of the
total amount of the damages sustained by Plaintiff, which total amount is to be
determined
by agreement by the parties or, if no agreement can
11
be reached, by this Honourable Court after the matter has been re-enrolled by
either of the parties; 8.1.2 payment of Plaintiff's
costs to date;
8.2 the only remaining dispute between Plaintiff and 1st Defendant is the
question whether, having regard to the written statement
of facts set out
herein, 1st Defendant is vicariously liable for the damage caused by 2nd
Defendant when he injured Plaintiff;
8.3 should the Court find that 1st Defendant is vicariously liable for the
damage caused by 2nd Defendant to Plaintiff, then this
Honourable Court should
grant judgment against 1st Defendant, jointly and severally with the judgment to
be granted against 2nd Defendant
for -
8.3.1
payment of an amount
equal to 75% of the total amount of the damages sustained by Plaintiff, which
total amount is to be determined
by agreement by the parties or, if no agreement
can be reached, by this Honourable Court after the matter has been re-enrolled
by
either of the parties;
8.3.2 payment of Plaintiff's costs to date.
12
8.4 should the Court find that 1st Defendant is not vicariously liable for the
damage caused by 2nd Defendant to Plaintiff, then
this Honourable Court should
dismiss Plaintiff's claim against 1st Defendant with
costs."
After hearing argument, SWART J granted
judgment against the second defendant in terms of the agreed statement of facts.
In regard
to the first defendant, the learned judge found that he was not
vicariously liable for the damage caused by the second defendant
to the
plaintiff and dismissed the plaintiff's claim against the first defendant with
costs.
SWART J granted leave to the plaintiff to appeal to this Court and directed
that the costs of the application for leave be costs in
the appeal.
Under paragraph 8.2 of the statement of facts, only one matter was left for
the decision of the trial court, namely, "whether, having
regard to the
written
13
statement of facts ... [the Minister] is vicariously liable for the damage
caused by [Adam] when he injured [Moodley]."
The well established principle
in regard to vicarious liability is that a master is liable for harm caused to
third parties by the
wrongful act of an agent if such agent is a servant and if
such act is done in the exercise of the functions to which the servant
has been
appointed. See Feldman (Pty) Ltd v Mall
1945 AD 733
at 735-6. Cf Minister of
Police v Rabie 1986(1) SA 117(A) which was discussed in Minister of Law and
Order v Ngobo 1992(4) SA 822(A).
In considering whether the principle relating to vicarious liability applies
in this case, it is necessary first to identify "the
wrongful act" of Adam which
caused the damage sustained by Moodley. The statement of facts does not in terms
identify the wrongful
act. It was identified in the plaintiff's
14
particulars of claim in which it was alleged in
paragraph 4 that "the
Second Defendant wrongfully,
unlawfully and intentionally shot the Plaintiff
with his
service pistol", and in paragraph 7, where it was
alleged, "As a result of such shooting the Plaintiff
suffered a gun shot wound in her back...". It was
referred in paragraph 3 of the statement of facts :
"The 2nd Defendant negligently caused the injuries sustained by the Plaintiff
on the 5th day of 0ctoberl989, in that -
3.2 [The] 2nd Defendant tried to hug Plaintiff while his pistol was not in his
holster but held in his hand and while the service
pistol was in the unsafe
condition described in subparagraph
3.1.1."
Paragraph 2 of the statement of facts refers
to "the injuries sustained by Plaintiff when the service pistol ... was
accidentally
fired ...". And in paragraph 7.9 it is said that "... the service
pistol was
15
accidentally fired, injuring Plaintiff ...".
It was nevertheless argued by
counsel for Moodley that Adam's wrongful act consisted not in the hugging of
Moodley by Adam, but in
his negligent failure to carry out his duties as a
police officer in regard to the safe use, carrying and handling of the service
pistol issued to him, which failure directly resulted in the accidental
discharge of the service pistol and caused the injuries.
It was contended that
this is what was agreed by the parties in paragraph 2 of the statement of
facts.
That paragraph is not a model of draftsmanship: it is confused and unclear. I
am nevertheless satisfied that it does not bear the
meaning for which counsel
contended.
It begins with the words, "Each and every of 2nd Defendant's negligent acts
or omissions ...". The Shorter Oxford English Dictionary
defines the two
words
16
each and every in terms of one another. The definition of each is "Every (one
of two or more) regarded separately"; that of every
is "Each of a group; all
taken one by one". Their use in conjunction is reminiscent of the tautology of
the pleader who traverses
multiple allegations in a declaration by saying, "The
defendant denies each and every allegation contained in paragraph 5 as
specifically
as if herein set forth and severally traversed". But it could not
have been the intention of the parties to agree in the statement
of facts that
each of the separate acts or omissions set out in paragraph 3 was in and by
itself
the
direct cause of the plaintiff's injuries. If that had been
intended, they would have said that each was a direct cause. Moreover
none of
the separate acts and omissions set out in paragraph 3.1.1 (carrying the pistol
with a round in the chamber, with the hammer
cocked and without engaging its
safety mechanism) and in
17
paragraph 3.1.2 (failure to ensure that his service pistol was safe and could
not be fired accidentally) was in itself and without
more capable of causing the
plaintiff's injuries. Furthermore it is plain that in paragraph 3.1 the parties
were not seeking to identify
the "wrongful act" but were setting out the
respects in which the act referred to in paragraph 3.2 was negligent.
The second inquiry is whether the wrongful act (the shooting) was done in the
exercise of the functions to which the servant was appointed,
or as it is
usually put, in the course and scope of his employment. More specifically in the
present case, the question is whether
Adam was doing the State's work, viz
police work, when he fired the shot which injured Moodley. Cf. Minister of
Police v Rabie, supra,
at 132 G-H.
It was not contended on behalf of the appellant that the attempt by Adam to
embrace Moodley
18
was an act done by Adam in the exercise of the functions to which he had been
appointed, that he was then doing police work, or that
he was acting in the
course or scope of his employment as a policeman. Rightly so. Adam was on an
amatory frolic of his own. The
mere fact that he was at the time in breach of
his duties as a policeman in regard to the handling of the pistol which had been
issued
to him does not fix the State with vicarious liability.
In my opinion SWART J was clearly right in his conclusion. The appeal is
dismissed with costs.
H/C NICHOLAS AJA.
BOTHA JA)
HEFER JA)
NESTADT JA)
NIENABER JA) Concur.