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[2019] ZASCA 26
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Minister of Safety and Security v Msi (273/2018) [2019] ZASCA 26 (28 March 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 273/2018
In
the matter between:
THE
MINISTER OF SAFETY AND
SECURITY APPELLANT
and
KHOLEKA
NANCY
MSI RESPONDENT
Neutral
citation:
The Minister of Safety and Security v Nancy MSI
(273/2018)
[2019] ZASCA 26
(28 March 2019)
Coram:
Navsa AP, Majiedt, Mathopo, Schippers JJA and Eksteen AJA
Heard:
27 February 2019
Delivered:
28 March 2019
Summary
:
Delict – assault by policeman – vicarious
liability – deviation case – application of legal
principles.
ORDER
On
appeal from:
Eastern Cape Division of the High Court, Grahamstown
(Lowe J and Kahla AJA concurring):
1.
The appeal succeeds with costs, including the costs of two counsel.
2.
The order of the court a quo is set aside and is replaced with the
following
‘
(a)
The appeal succeeds with costs.
(b)
The order of the Magistrate is set aside and replaced with the
following: ‘The plaintiff’s claim is dismissed with
costs.’
JUDGMENT
Eksteen
AJA (Navsa AP, Majiedt, Mathopo and Schippers JJA concurring):
[1]
The dispute in this matter raises the vexed issue of vicarious
liability of the appellant (the Minister) for the conduct of his
servants who have deviated from the course and scope of their
employment. The respondent (Ms Msi) was assaulted by her former
suitor,
Warrant Officer Thambo (Thambo), a policeman in the employ of
the South African Police Services (SAPS), during a private meeting
at
the home of her employer. Thambo was summoned to the residence by Ms
Msi in order to discuss personal affairs, which are set
out in
greater detail below, when the assault occurred. She instituted
action against the Minister claiming damages which she allegedly
suffered in consequence of the injuries she sustained in and as a
result of the assault. She obtained judgment in her favour in
the
Regional Court, Grahamstown which was confirmed on appeal by the High
Court, Grahamstown. The current appeal is directed against
that
judgment and it proceeds with special leave obtained from this court.
Background
[2]
The sad saga giving rise to Ms Msi’s claim unfolded in
the usually tranquil seaside village of Kenton-on-Sea (Kenton) in the
Eastern Cape. Ms Msi, a 52 year old woman who was employed as a
domestic worker, had previously been engaged in a lengthy intimate
relationship with Thambo which had ended in 1996 when Thambo left to
live in Johannesburg. He later returned to Kenton and, although
they
did not resume their relationship, they remained close friends.
Thambo’s brother, Madala, and his girlfriend formed
part of
their social circle. During February 2013, tension arose within the
friendship as Ms Msi suspected that Thambo was engaged
in an unduly
intimate relationship with Madala’s girlfriend. She had
witnessed the two of them kissing in a motor vehicle
in Kenton. At
approximately the same time Ms Msi became aware of inexplicable
animosity towards her from Madala’s girlfriend,
who had made
abusive statements to and of her. Unsurprisingly, she felt offended
by this conduct.
[3]
Ms Msi’s alleged observation of the perceived intimacy
between Thambo and Madala’s girlfriend had come to the
knowledge
of Madala and he requested to meet with Ms Msi at his home
so that they could discuss the matter. Initially, she was reluctant
and declined to commit to such a meeting. In due course, however, she
agreed to such a meeting on condition that it be held at the
house of
her employer and on the basis that ‘there isn’t any
violence that will occur’. The meeting was accordingly
scheduled for 20 February 2013.
[4]
Initially, Ms Msi testified that the meeting was arranged only
to discuss the abusive utterances by Madala’s girlfriend.
However,
in cross-examination, she was constrained to acknowledge
that the illicit affair between Thambo and Madala’s girlfriend
was
also on the agenda. In these circumstances, Thambo was also
summoned to the meeting.
[5]
On the day of the meeting, Thambo was officially on duty
performing crime prevention patrol duties and attending to
complaints.
He was not authorised to attend private meetings during
working hours. He was dressed in full uniform and armed with his
official
firearm carrying his issued handcuffs and he travelled in a
marked police vehicle. Although police on patrol duty are required to
work in pairs, Thambo proceeded without his partner, no doubt because
he perceived the meeting to be a private affair, to fetch
Madala, his
girlfriend and another unnamed woman. The four of them travelled in
the police vehicle to Ms Msi’s place of employment.
The use of
a police vehicle for private purposes was prohibited by police
regulation.
[6]
There is no evidence that any of the attendees, save for Ms
Msi, knew that the utterances by Madala’s girlfriend were to be
discussed at the meeting, nor that they were raised for discussion at
the meeting before it descended into chaos as set out below.
As the
meeting commenced Ms Msi immediately raised the alleged illicit
affair between Thambo and Madala’s girlfriend for
discussion.
This elicited an angry response from Thambo who proceeded to assault
Ms Msi. He struck her with a clenched fist and
with his police
handcuffs. As she screamed for help, her employer’s son came to
her assistance and separated the parties.
These events brought the
meeting to an abrupt end.
[7]
There is a dearth of information relating to the immediate
stimulus which lead to the assault. Neither the trial court nor the
court
a quo gave any consideration to the sequence of the events at
the alleged meeting. It can, however, safely be accepted on a
conspectus
of the evidence that the assault occurred when Thambo was
confronted with his alleged conduct with Madala’s girlfriend.
[8]
Against this background, the court a quo held the Minister
vicariously liable for the conduct of Thambo. The sole question in
the
appeal is whether it was correct in this finding.
The
test for vicarious liability
[9]
As a general rule, an employer is vicariously liable for the
wrongful acts or omissions of an employee committed within the course
and scope of employment, or whilst the employee was engaged in any
activity reasonably incidental to it. In
F v Minister of Safety
and Security
2012 (1) SA 536
,
Mogoeng J explained:
‘
Two tests apply to the
determination of vicarious liability. One applies when an employee
commits the deed while going about the
employers business. This is
generally regarded as the
“standard test”.
The other test finds application where wrongdoing takes place outside
the course and scope of employment.
These are known as “deviation
cases”.’
[1]
In this matter the court a quo
correctly held, and it is common cause, that Thambo was not advancing
the interests of his employer
in any way, whether improperly or
otherwise. He was not acting in the course and scope of his
employment. This is accordingly a
‘deviation case’.
[10]
The legal foundation of
the test for vicarious liability in deviation cases was initially
developed in two decisions of this court
during the previous century;
Feldman (Pty) Ltd v Mall
1945 AD 733
and
Minister
of Police v Rabie
1986 (1)
SA 117
(A). The test was further refined by the Constitutional Court
in
K v Minister of Safety
and Security
[2005] ZACC 8
;
2005 (6) SA
419
(CC) and in
F v Minister
of Safety and Security.
[2]
It is instructive to have regard to these developments before seeking
to apply the test to the facts of the present
case.
[11]
In
Feldman
a servant of the defendant had been given
custody of a motor vehicle and a number of parcels with instructions
to drive the vehicle
and to deliver the parcels to various customers
in town. Having completed his deliveries he was to return the vehicle
to a certain
garage. Instead, however, he drove the vehicle to a
place some distance away, on his own business, and there consumed
alcohol which
significantly impaired his driving ability. Shortly
after departing from this location and on route back to the garage he
collided
with and killed the father of two minor children. This court
held that he had never entirely abandoned his master’s work as
he had throughout retained the custody and control of the vehicle on
behalf of his master and that the master was therefore liable
for his
negligence.
[12]
In the course of his judgment, however, Watermeyer CJ
discussed the common law position relating to vicarious liability. He
stated:
‘
If an unfaithful servant,
instead of devoting his time to his master’s service, follows a
pursuit of his own, a variety of
situations may arise having
different legal consequences.
(a)
If he abandons his master’s
work entirely in order to devote his time to his own affairs then his
master may or may not, according
to the circumstances, be liable for
harm which he causes to third parties. If the servant’s
abandonment of his master’s
work amounts to mismanagement of
it or negligence in its
performance and is, in itself, the cause of harm to third parties,
then the master would naturally be legally
responsible for that harm.
. . If, on the other hand, the harm to a third party is not caused by
the servant’s abandonment
of his master’s work but by his
activities in his own affairs, unconnected with those of his master,
then the master would
not be
responsible.’
[3]
[13]
Watermeyer CJ also discussed the reasons for imposing
vicarious liability on a master and explained:
‘
I have gone into this question
more fully than seems necessary, in the hope that the reasons which
have been advanced for the imposition
of vicarious liability upon a
master may give some indication of the limits of a master’s
legal responsibility, and the reasons
are to some extent helpful. It
appears from them that a master who does his work by the hand of a
servant creates a risk of harm
to others if a servant should prove to
be negligent or inefficient or untrustworthy; that, because he has
created this risk for
his own ends he is under a duty to ensure that
no one is injured by the servant’s improper conduct or
negligence in carrying
on his work and that the mere giving by him of
directions or orders to his servant is not sufficient performance of
that duty.
It follows that if the servant’s acts in doing his
master’s work or his activities incidental to or connected with
it are carried out in a negligent or improper manner so as to cause
harm to a third party the Master is responsible to that harm.’
[4]
[14]
Rabie
was decided some forty years after
Feldman
.
In
Rabie,
an off-duty mechanic employed by the South African
Police and dressed in civilian clothes carried out an arrest purely
for his own
purposes. He was not employed to perform law enforcement
duties and he had clearly not acted in the course and scope of his
employment.
At the time of the arrest, however, he introduced himself
as a policeman and after arresting his victim took him to the police
station, filled out a docket, wrongfully charged his victim with
attempted housebreaking and detained him. In the course of the
judgment Jansen JA stated:
‘
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 a 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 . .
.’
[5]
[15]
K
came before the Constitutional Court in 2005. It
concerned the unlawful kidnap and rape of an innocent woman by three
policemen
on duty. K had been on a date with her boyfriend. The
arrangement had been that he would take her home at the end of the
evening,
but he had met up with a former girlfriend during the course
of the evening which led to a disagreement between K and her
companion.
When she asked him to take her home he refused and she
therefore decided to look for a telephone in order to call her mother
so
that she could collect her. As there was no telephone available at
the venue where they were she proceeded on foot to a nearby petrol
station. There too she was unable to obtain access to a telephone.
However, in the shop attached to the petrol station a policeman
in
full uniform entered. He was the driver of a marked SAPS vehicle and
addressed her in fluent Afrikaans asking where she was
headed. She
advised that she wanted to go home and he offered to take her there.
In the vehicle there were two other members of
the SAPS, also dressed
in full uniform. They were all on duty. Instead of taking her home,
however, they kidnapped and raped her.
[16]
The Constitutional Court accepted the test enunciated in
Rabie
as point of departure and further refined the test in order to
give effect to Constitutional norms. It held that in seeking to
establish
what constitutes a ‘sufficiently close link’
the court should consider the need to give effect to the spirit,
purport
and object of the Constitution. It referred with approval to
the dicta in
Feldman
and
Rabie
which I have set out
above and O’ Regan J proceeded to state, in respect of
deviation cases:
‘
The objective element of the
test which relates to the connection between the deviant conduct and
the employment, approached with
the spirit, purport and objects of
the constitution in mind, is sufficiently flexible to incorporate not
only constitutional norms
but other norms as well. It requires a
court when applying it to articulate its reasoning for its
conclusions as to whether there
is a sufficient connection between
the wrongful conduct and the employment or not. Thus developed, by
the explicit recognition
of the normative content of the objective
stage of the test, its application should not offend the Bill of
Rights or be at odds
with our constitutional
order.’
[6]
[17]
The Constitutional Court concluded that the police officers’
conduct bore a sufficient connection to their employment as police
officers to attach vicarious liability to the Minister. In applying
the new refined tests for vicarious liability three considerations
weighed heavily with the court; (a) the police officers and their
employer had a statutory and constitutional duty to prevent crime
and
to protect members of the public; (b) the police officers had offered
to assist K and she had accepted their offer and by doing
so, reposed
her trust in the police officers in uniform in circumstances where it
was reasonable for her to do so; and (c) there
had been a
simultaneous commission and omission. The police committed the rape
on K; simultaneously they had omitted to protect
her from harm which
they had a general and special duty to do.
[18]
In
K
, however, the Constitutional Court sought only to
lay down the legal parameters. O’ Regan J went on to explain:
‘
The common - law test for
vicarious liability in deviation cases as developed in
Rabie
’s
case and further developed earlier in this judgment need to be
applied to new sets of facts in each new case in the light
of the
spirit, purport and objects of our Constitution. As courts determine
whether employers are liable in each set of factual
circumstances,
the rule will be developed. The tests is one which contains both a
factual assessment (the question of the subjective
intention of the
perpetrators of the delict) as well as a consideration which raises a
question of mixed fact and law, the objective
question of whether the
delict committed is “sufficiently connected to the business of
the employer” to render the
employer liable.’
[7]
[19]
The facts in
F
were similar to those in
K
. A
young teenage girl had been to a night club in George. In the early
hours of the morning she found herself stranded without
transport.
She was offered a lift home by an adult man in civilian clothes in an
unmarked vehicle. As it turned out he was a policeman
on standby duty
and the vehicle was a police vehicle which he was entitled to use by
virtue of the police functions which he might
be required to fulfil
if called upon. The vehicle was fitted with a radio which F noticed
when she entered the vehicle. Whist travelling
she noted a pile of
police dockets bearing the name and the rank of the police official.
Upon enquiry he advised that he was a
private detective, which F
understood to mean that he was a policeman. Contrary to his earlier
undertaking, however, he drove the
vehicle to a secluded spot outside
of the town. The direction in which he drove caused F to become
suspicious and when the vehicle
came to a stop at the secluded spot F
alighted and fled. A short while later the vehicle departed and F
returned to the road side
in order to seek a lift back to town. A
vehicle approached and stopped to afford her a lift. Remarkably, it
was the same vehicle
and the same driver. Despite her misgivings she
reluctantly boarded the vehicle. This she did partly owing to her
desperate situation
and partly because she believed that he was in
fact a policeman and that she could for that reason trust him. He
abused that trust
and raped her.
[20]
In F, the majority in the Constitutional Court held that there
was a sufficiently close link between the conduct of the policeman
and the business of his employer. Mogoeng J writing for the majority,
again had an occasion to discuss the nature of the test to
be
applied. He held:
‘
As O Regan J stated in K the
second question “does not raise purely factual questions but
mixed questions of fact and law”.
Accordingly, several
interrelated factors have an important role to play in addressing the
question whether the Minister is vicariously
liable for the delictual
conduct of Mr Van Wyk. The normative components that point to
liability must here, as K indicated, be
expressly stated. They are:
the state’s constitutional obligations to protect the public;
the trust that the public is entitled
to place in the police; the
significance, if any, of the policeman having been off duty and on
standby duty; the role of the simultaneous
act of the policemen’s
commission of rape and omission to protect the victim; and the
existence or otherwise of an intimate
link between the policemen’s
conduct and his employment. All these elements complement one another
in determining the state’s
vicarious liability in this
matter.’
[8]
[21]
On a consideration of all these authorities and applying the
test which emerges, this court, in
Minister of Safety and Security
v Booysen
[2016] ZASCA 201
, summarised the approach to be adopted
thus:
‘
The question remains whether in
this case there is a sufficient link between the deceased’s
conduct and his employment to
impose vicarious liability on the
minister. That question can only be answered by considering the
normative factors referred to
earlier, and the countervailing
factors, thus conducting a balancing act.’
[9]
It
seems to me that this approach constitutes a fair reflection of what
is required in terms of
K
and
F
.
Application
of the test
[22]
Applying the test in
K
in the present case the answer
to the first question, which is subjective, does not establish
liability. Thambo’s attendance
at a meeting with Ms Msi was
purely for his own purposes. He was summoned to attend a private
meeting relating to personal affairs
and he had no police function to
perform there. Ms Msi had not summoned him by virtue of his
employment as a police officer. She
had no criminal complaint to lay
and, on her own evidence, what was to be discussed was purely
personal and between friends. There
was nothing in the conduct of
Thambo that suggests that he subjectively intended to advance the
interests of the SAPS.
[23]
I turn therefore to
consider the second leg of the inquiry, whether there is a
sufficiently close link between the assault of Ms
Msi and the
business of the SAPS. This enquiry is objective and it involves
issues of fact and law. The point of departure is the
recognition
that the constitutional duty resting on the state, and more
particularly on the police, to protect members of the public
against
crime and violence provides a normative basis
for
holding
the
state
liable
for
the
wrongful
conduct
by
policemen.
This
liability, however, will only
be imposed where there is a ‘sufficiently close connection’
between the conduct of the
policemen and their employment.
[10]
[24]
In
K
and in
F
the trust which the public is
entitled to place in the police and which the victims had placed in
the policemen involved was pivotal
to the conclusion reached. It
weighed heavily with the court that an innocent citizen in distress
had reposed her trust in the
police as she was entitled to do and the
policeman in issue had breached that trust. Thus, in
F
,
Mogoeng J held:
‘
In addressing the question of
Mr Van Wyk’s personal liability and his employer’s
vicarious liability it should make
little difference that he was on
standby duty, for which he was being paid. What matters is whether
the trust placed in him as
a policeman by a vulnerable member of the
public, creates a sufficiently close connection between his delictual
conduct and his
employment.’
[11]
[25]
The trust in issue in
F
was explained thus:
‘
. . . Additionally, if his
employment as a policeman secured the trust of the vulnerable person
placed in him, and his employment
facilitated the abuse of that
trust, the state might be held vicariously liable for the delict. The
victim’s understanding
of the situation would presumably be
that she is being protected or assisted by a law enforcement agent,
empowered and obliged
by the law to do so. Whether he is on or off
duty would, in all likelihood be immaterial to her. From where she
stands he is a
policeman, employed to protect her, and should
therefore be trusted to uphold, and not contravene, the law’.
[12]
[26]
The court a quo held that there was an element of trust
involved in the meeting to which Thambo was summoned, because the
meeting
was essentially a meeting to resolve conflict which had
arisen as a result of an injuria, or an alleged injuria. It reasoned
that
this necessarily meant that the parties at the meeting were
entitled to place their trust in Thambo to maintain decorum, law and
order. I disagree with this reasoning.
[27]
It is true that Thambo was on duty, dressed in uniform and
arrived at the meeting in a marked police vehicle. He was armed with
a police issued firearm and handcuffs and he utilised the handcuffs
in the course of the assault. These were factors which influenced
the
court a quo to come to the conclusion that a sufficiently close link
had been established between the conduct of Thambo and
the business
of SAPS.
[28]
There is, however, nothing in the evidence to suggest that
Thambo knew that the alleged injuria would be raised at the meeting
and,
as a fact, it was not raised. As illustrated earlier herein, Ms
Msi did not place her trust in Thambo by virtue of him being a
policeman. From where she stood he was not a policeman employed to
protect her but rather an old friend called to the meeting by
virtue
of their friendship and in order to confront him with his own
misconduct. The commission of the delict was not facilitated
by his
employment as a policeman and the assault would have occurred in any
event. In the context of the present case the fact
that he was on
duty, dressed in uniform and carrying paraphernalia issued to him in
the course of his employment made no difference.
Had he arrived in a
private vehicle and in civilian clothes, without handcuffs, whilst
off duty the result, it seems to me, would
have been precisely the
same. In fact, the evidence suggests that she had anticipated a
possible violent response from Thambo,
hence her suggestion to Madala
that there should be no violence.
[29]
I do not lose the sight of the fact that the trust which the
public are generally entitled to repose in the police, is a factor to
be considered in the application of the test for vicarious liability.
In
Booysen
this court held:
‘
A careful and close reading of
K and F reveals that the element of trust was central to the finding
that there a sufficiently close
link connection between the acts of
the police officers and their employment, hence, vicarious liability.
It is indeed doubtful,
whether, without the element of trust, the
outcome of the two cases would have been the same. K is explicit on
this aspect:
“
[57] In sum, the opportunity to
commit the crime would not have arisen but for the trust the
applicant placed in them because they
were policemen, a trust which
harmonises with the constitutional mandate of the police and the need
to ensure that mandate is successfully
fulfilled”.’
[13]
[30]
In
Booysen
a police officer on duty had utilised his
police issue firearm to shoot his girlfriend. The fact that the
police firearm was utilised
in the shooting weighed heavily with the
trial court when it held the minister liable for the conduct of a
police official. On
appeal, however, this court held:
‘
The finding of liability based
on the mere fact of the SAPS issuing a firearm to a police officer,
amounts to the imposition of
the strict liability, which is
impermissible. For liability to arise under such circumstances, there
must be evidence that the
police officer in question was, for one
reason or the other, known to be likely to endanger other people’s
lives by being
placed in possession of a firearm, and despite this,
he or she was nevertheless issued with the firearm or permitted to
continue
possessing it. Such was the situation in
F
,
where the police officer was retained in the employ of the SAPS as a
detective despite previous criminal convictions.’
[14]
[31]
I do not think that the use of the handcuffs leads to the
conclusion that the employment of Thambo provided the means to commit
the crime. Thambo clearly reacted angrily to what he perceived to be
provocation and struck Ms Msi repeatedly with clenched fists
before
striking her with his handcuffs. Had he not been in possession of
handcuffs he would in all probability have utilised some
other object
to strike Ms Msi. It was merely a convenient object which was
coincidentally available to utilise in the course of
the assault
which was already in progress. As stated earlier, the assault would,
on the facts of this case, have occurred in any
event.
[32]
There is a further factor which on the facts of the present
matter is deserving of consideration. It is that Ms Msi summoned
Thambo
to the meeting while he was on duty, which was contrary to
police instructions. In
Bezuidenhout v Eskom
2003 (3) SA 83
(SCA) an employee of Eskom had offered a lift to a minor child in a
vehicle owned by Eskom and whilst on duty. This was contrary
to the
express instructions to the employee not to offer lifts to members of
the public. In the course of such conveyance a collision
occurred and
the minor child was injured. This court held that Eskom was not
vicariously liable for the conduct of its employee
because he had
been conveying the minor child contrary to express instructions.
[33]
In the course of the judgment Heher AJA considered an earlier
judgment of
South African Railways and Harbours v Marais
1950
(4) SA 610
(A) (
SAR and H
) and held:
‘
In the specific circumstance of
SAR and H v Marais
(and
those of the present case) it would be unfair to hold the employer
liable to the passenger who has associated himself, albeit
innocently, with the forbidden conduct of the employee and who, in
effect, assumes the risk of the association.’
[15]
He
proceeded to state:
‘
Moreover, application of the
elements of the standard test which are perhaps more prominently
applied today than in 1950, namely
the subjective state of mind of
the employee, and the objective test of a sufficiently close link
between the servant’s acts
in his own interest and for his own
purposes and the business of the master. . . would both point to
conduct on the driver’s
part which fell beyond the scope of his
employment; the driver knew perfectly well that he was prohibited
from allowing Marais
on to the engine and had no intention of
furthering his master’s affairs by doing so, and the reality
was that Marais’
presence added nothing to the interests of the
administration in the proper operation of its service – the
“close connection’’
was demonstrably absent.’
[16]
[34]
Bezuidenhout
was decided prior to
K
and
F
.
In
K
, however, O’ Regan J distinguished the facts of
Bezuidenhout
and those in
SAR and H
from the situation
in
K
. She proceeded to state, however:
‘
Even were the transportation of
the applicant to have been in breach of the standing order, however,
it is clear that the fact that
employees breach a rule of their own
employment is not sufficient of itself always to avoid employer
liability. It remains a factor
to be considered in determining
whether the connection between the wrong and the employment is
sufficiently close or not. It cannot
on its own always be
determinative. In this case, the appellant accepted the assistance
offered by the police. The fact that this
may have been against
standing order is not sufficient on its own in view of the other
factors already mentioned to mean that the
respondent cannot be
vicariously liable.’
[17]
[35]
The consideration of a breach of a rule of the employment of a
servant remains relevant for purposes of determining whether there
is
a sufficiently close link between the conduct of the wrongdoer and
the business of his employer. In the present case, Ms Msi
knew that
Thambo was a police official. On her own evidence she knew that he
was on duty and nevertheless summoned him to the meeting,
not for any
police purpose, but for a private matter. The attendance of a private
meeting while on duty and the use of a police
vehicle for purposes
thereof was, on the undisputed evidence, prohibited. In these
circumstances it may, on the facts of this case,
rightly be said that
she has associated herself with the forbidden conduct. This factor
and the absence of trust operate as countervailing
factors to the
normative considerations.
[36]
For these reasons I find that there is not a sufficiently
close connection between the business of the SAPS and the conduct of
Thambo
to justify the imposition of vicarious liability.
[40]
In the result:
1. The appeal succeeds with costs,
including the costs of two counsel.
2. The order of the court a quo is set
aside and is replaced with the following: ‘(a) The appeal
succeeds with costs.
(a) The order of the Magistrate is set
aside and replaced with the following:
‘
The plaintiff’s claim is
dismissed with costs.’
__________________
J.W.
Eksteen
Acting
Judge of Appeal
Appearances:
For
Appellant: EAS Ford SC (with him J Bester)
Instructed
by: Whitesides Attorneys, Grahamstown State Attorney, Bloemfontein
For
Respondent: A G Dugmore SC (with him JR Koekemoer)
Instructed
by: N. N. Dullabh & Co., Grahamstown Symington & De Kok,
Bloemfontein
[1]
F v Minister of Safety and Security
[2011] ZACC 37
;
2012 (1) SA 536
para 41.
[2]
Ibid.
[3]
Feldman (Pty) Ltd v Mall
1945 AD 733
at 742.
[4]
Ibid at 471.
[5]
Minister of Police v Rabie
1986 (1) SA 117
(A) at 134C-E.
[6]
K v Minister of Safety and Security
[2005] ZACC 8
;
2005 (6) SA 419
(CC) para 44.
[7]
Ibid para 45.
[8]
F fn 1 above para 52.
[9]
Minister of Safety and Security v Booysen
[2016] ZASCA 201
para 19.
[10]
F fn 1 above para 61.
[11]
Ibid para 68.
[12]
Ibid para 66.
[13]
Booysen fn 9 above para 20.
[14]
Ibid para 17.
[15]
Bezuidenhout v Eskom
2003 (3) SA 83
(SCA) para 23.
[16]
Ibid para 24.
[17]
K fn 6 above para 55.