2
This matter has been heard in open court and is otherwise disposed of in terms of the
Directives of the Judge President of this Division. The judgment and order are
accordingly published and distributed electronically.
BEFORE THE HONOURABLE JUDGE, MATJELE AJ
Introduction
1. This is an application for default judgment, which was scheduled to be heard on
the unopposed motion roll of the 8th May 2025, for the Court to determine both
merits and quantum where the Minister of Police is being sued for vicarious
liability for actions of its employee (Emmanuel) for killing his wife with a service
fire-arm.
2. It is common cause that Emmanuel was convicted and sentenced. He was still
serving his imprisonment sentence at the time of the hearing of this matter. The
minister is sued by the deceased wife’s minor daughter and her both parents, one
also representing the minor child.
3. It is also clear that Emmanuel was originally the second defendant in the matter,
and the claim against him was abandoned or withdrawn by the plaintiffs or
applicants herein, for reasons best known to them.
4. On the day of hearing this matter it became clear that though it would ordinarily
be unopposed as a default judgment application, the 1st Defendant’s counsel was
present in court, for purposes of “cross examining the plaintiff’s witnesses”, as the
applicants present evidence to prove liability and quantum in the ir unliquidated
delictual claim.
3
5. In addition, Respondent’s (defendant’s) counsel had insisted on additional
specific witnesses to be called by the Applicants for him to cross-examine them.
However, in exercising this right the struck off defence would not be put to the
witnesses.
State’s duty to comply with Court orders.
6. This application for default judgement arises from the Respondents failure to
comply with the Court Order of Van Der Merwe AJ, dated 15 December 2022.
The respondent’s defence was struck out as per Court Order of the Honourable
Malengana AJ, dated 03 May 2023. A rescission application brought by the
respondent / defendant was dismissed by the Honourable Hertzog AJ on the 05
March 2024, hence this matter is unopposed.
7. Section 165 (4) and (5) of the Constitution of South Africa (the constitution) is
clear that state institutions and agencies have a paramount duty to assist and
protect the courts and ensure their effectiveness, among others. In addition, the
orders by courts are binding equally on all persons, including the very organs of
the state. In Motswagae1, the Constitutional Court stated that “…there is a higher
duty on the state to respect the law, to fulfil procedural requirements and to tread
respectfully when dealing with rights. Government is not an indigent or bewildered
litigant, adrift on a sea of litigious uncertainty, to whom the courts must extend a
procedure-circumventing lifeline. It is the Constitution’s primary agent. It must do
right, and must do it properly.”
1 Motswagae and Others v Rustenburg Local Municipality and Another [2013] ZACC 1; 2013 (2) SA 613 (CC).
4
8. And in Ndabeni, the Constitutional Court stated that “If the impression were to be
created that court orders are not binding, or can be flouted with impunity, the
future of the judiciary, and the rule of law, would indeed be bleak.”2
Defendant’s right to cross-examine plaintiff’s witnesses where its defence was
struck off.
9. Due to the number of witnesses needed, the matter could not be dealt with on the
unopposed motion roll of the said day, with the applicants’ counsel insisting that
there is no other court roll the matter may be accommodated as a default
judgment application, except this roll. The registrar would not, he further argued,
allocate it on the opposed motion roll, as it technically was, or any other roll except
the very unopposed roll as per the practice directives.
10. He cited the prejudice to be suffered by the applicants if the matter is removed
from the roll, in the process of further delays occurring. The matter had to be
postponed to the 16th July 2025, during recess period for plaintiff’s evidence to be
heard. The matter ended up rolled over to the 17th July 2025. Heads of argument
were then filed on the 21 st July 2025. This situation is clearly incongruent and
inconsistent with what is anticipated in unopposed motion court roll. It is contrary
to what practice directive 9.14 of the Gauteng Local Division of the High Court
anticipated when default judgments were allocated on the unopposed motion
court roll of about 50 matters per day. It ran for two to three days like a trial.
2 Municipal Manager O.R. Tambo District Municipality and Another v Ndabeni [2022] ZACC 3. See also Secretary
of the Judicial Commission of Inquiry into Allegations of State Capture Corruption and Fraud in the Public Sector
including Organs of State v Zuma [2021] ZACC 18; 2021 (5) SA 327 (CC); 2021 (9) BCLR 992 (CC) (State Capture)
at para 87.
5
11. It is the Court that raised the concern and even requested to be addressed on
this aspect at the close of proceedings, considering the above problem it causes.
It is a glaringly inevitable procedural dilemma, which caused of a matter meant to
be heard within minutes or few hours, ending up heard over two days. It is
noteworthy ‘ in casu’ that the plaintiffs had no problem with the defendants’
participation in the matter.
12. The question to be answered is: ‘what is the ‘locus standi’ of a defendant whose
defence has been struck out, and to what extent he may still participate in the
legal proceedings, if at all?’
13. In simple terms, ordinarily once a defendant’s defence in its plea is struck out, as
in the present case, it means that there is no defence before the court by which
the defendant answers to , or denies the plaintiff’s cause of action , hence the
plaintiff is allowed to proceed to obtain judgment by default. In liquidated claims
there is no much problem . However, i n unliquidated claims there is clearly a
necessity to call witnesses, especially to prove quantum of damages. The latter
scenario is what prevailed on the issue at hand.
14. I questioned the presence of the defendant’s counsel during these proceedings.
I questioned the authenticity of, and preferential treatment, of the Defendants in
this matter, where their defence has been struck off due to their failure to comply
with this Court’s orders. More so, of great concern is the fact that the very errant
defendant’s counsel is given a right to demand which witnesses, especially
experts, to be called for him/her to exercise this ‘right to cross -examine’ he/she
enjoys. The exercise of this very ‘right’ is what has led to the hearing of evidence
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over 3 days , instead of within few hours, at most, hence on unopposed motion
roll.
Principles:
15. The old position was always that “If a defence is struck out, the defendant cannot
appear at the trial and cross-examine the plaintiff’s witnesses”3. This was followed
in Minister of Safety and Security v Burger4 by Tlhapi J who rejected the argument
that the striking of a defence left room for the [defendant] to still participate in the
trial as far as the determination of quantum is concerned.
16. A contrary view is expressed in Stevens5 by Twala J who stated that [11]: “… the
striking out of the defence of the defendant does not in itself bar the defendant
from participating in these proceedings. The defendant is entitled to participate in
these proceedings but his participation is restricted in the sense that it cannot
raise the defence that has been struck out by an order of court. It is therefore not
correct to say the defendant was not entitled to cross-examine the plaintiffs after
giving evidence, furthermore, the cross -examination was on the evidence
tendered by the plaintiffs and the defendant did not attempt to introduce its own
case during the cross -examination”. This view is supported by several recent
judgments like RAF (Motala)6 by Hitchings AJ, Minister of Police v Michillies,7 and
T.P.R. obo P.M.M. v RAF8 by Davis J.
3 Herbstein and Van Winsen : The Civil Practice of the High Courts of South Africa, 5th Ed at para 824.
4 3 (59473) [2015] ZAGPPHC 346 (15 May 2015) (Burger).
5 Stevens and Another v RAF op cit at para 11.
6 Motala NO v RAF (42353/2019) [2023] ZAGPJHC 1323 (15 November 2023) (Motala).
7 Minister of Police v Michillies (1011/2022) [2023] ZANWHC 90 22 June 2023 (Michillies).
8 T.P.R. obo P.M.M. v RAF (9117/2019) ZAGPPHC (18 April 2024) (TPR).
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17. Davis J in TPR examined the above cases and ‘old authorities’ postulating the
contrary position. He concluded that all the “old authorities” which had been cited
in his case predated the Constitution , and yet s ection 34 of the Constitution
guarantees “everyone … a right to have a dispute that can be resolved by the
application of law decided in a fair hearing before a court”. Relying on Mukkadam9
where the Constitutional Court confirmed that the manner in which a party brings
a dispute before a court may be regulated, in this instance by the Superior Courts
Act 10 of 2013 and the Uniform Rules.10
18. The other strong justification appearing in the above matters is the potential
depletion of the public purse. Usually, after the defendant’s case has been struck
out, there would be amendments to pleadings increasing the claims. However,
even where no such amendment is sought by the pl aintiff, li ke ‘in cas u’, the
defendant is still justifiable to be present in the proceedings and to cross-examine
the defendants. Essentially, the recent cases are addressing the mischief and/or
potential mischief of inflated claims at default judgment applications. It is also for
the Defendant to be present to ensure that the plaintiff has indeed discharged the
onus of proving its case, and to test plaintiff’s evidence (especially experts) when
proving its quantum to the court.
19. In para 18, Davis J concludes, which I now concur with: “I find that when a
defendant’s defence has been struck out, a plaintiff still has to prove its
entitlement to damages and the extent thereof and a defendant has the right to
cross-examine the plaintiff’s witnesses or to interrogate their affidavits (and
9 Mukaddam v Pioneer Foods (Pty) Ltd 2013 (5) SA 89 (CC) per Jafta J at par [31].
10 See: Mukaddam supra, at par [31].
8
reports) if they have been allowed by a court in terms of Rule 38(2) on condition
further that the defendant may not put a different factual version to s uch
witnesses, lead countervailing evidence or base any argument on facts not put in
evidence by the plaintiff.”11
In which roll should these matters be allocated?
20. In light of my conclusion that the Defendant / Respondent is entitled to cross -
examine the plaintiff’s witnesses, the problem of matters running beyond the
allocated or anticipated time frame remains a challenge, with these matter
allocated in unopposed motion rolls. Due to the usual backlog in securing closer
trial dates, ordinarily, allocating these matters on the trial roll would be an injustice
running against the spirit and purport of uniform rule 31(2)(a) intended to provide
speedy relief.
21. Ordinarily, when a matter is called in court, and a legal practitioner representing
the other side rises, the matter is regarded as opposed, and therefore belongs to
the opposed motion court roll. In this case, I was tempted to deal with it in the
same manner. However, the plaintiff’s attorney argued that if the matter in not
proceeded with, there in no other roll it may be allocated in by the Registrar. And
this is prejudicial to their clients’ interests.
22. From the words of Twala J in Stevens (supra), “…the rules are for the court and
not the court for the rules”12. Therefore, these matters should either be allocated
in a special default judgments roll, with the Judge President’s blessing,
11 T.P.R op–cit at para 18.
12 At para 11.
9
alternatively, on opposed motion roll, where viva voce evidence may be heard
and tested by the defendant’s counsel, under cross -examination, thus avoiding
the inconvenience and undesirability of dealing with an unopposed motion roll
matter over two or more days, as was the case in casu.
Merits of the case:
23. Three witnesses were called , namely the applicants, Captain Raymond Hosani
Hobyani and Monica Cebisile Hobyani (both parents of the deceased), and the
social worker, Muzi Happyness Mandlazi. The police docket and its contents were
accepted as Exhibit A. In addition, the actuarial report compiled by Mr. Ndumiso
Mavimbela of Manala Actuaries and Consultants, was accepted as exhibit B.
24. While sleeping in their home in Protea Glen, Soweto, in the early hours of the 29th
January 2018, the applicants received a telephone call from a neighbour of their
daughter, Wisani Brenda Hobyani (the deceased) and her husband, known as
Emmanuel, in Randfontein. She was informing them that there had been gun
shots in the deceased’s home, and the deceased was missing in the house. They
rushed there.
25. Upon their arrival they found an already cordoned off scene with a pool of blood
in the bathroom and at the front main door of the house. The police were already
there. The husband, Emmanuel Rabelani Mankhili (Emmanuel), had taken the
deceased to a mine dump between Kagiso and Randfontein , where the police
found the deceased’s body. The first applicant, the deceased’s father, had to go
there to confirm if that’s her daughter’s body, which devastated h im, especially
due to the condition in which his daughter’s body was found, about a kilometre
10
off the main road into a mining dump, with a bullet wound on the forehead and a
thorax that was slit open. There were about five bullets wounds on the deceased’s
body.
26. According to Mr Hobyani when he enquired from an IPID investigator he was told
that Emmanuel was on duty a round 7pm in the Randfontein tactical response
team in Randfontein, though reporting in Kagiso where they both worked. This
means he was on duty that night , per RHH. It is unknown why he was at their
house in the early hours of that morning of the 29th January 2018.
27. The deceased’s daughter was found in the home of one of the neighbours
shaking, and not even dressed warm . Apparently , the neighbours heard her
crying at their door after they heard gun shots, and later seeing Emmanuel’s Ford
Ranger vehicle speeding off the complex. They thought he was rushing her to
hospital as they on found blood in the house, and could not find the deceased.
According to the evidence of both applicants, the child had witnessed the killi ng
of her mother, at that tender age of three (3) years, as she would mimic the sound
of a gun when talking about his father, that “Rabie ‘tu-tu-tu’ Wisani” (the deceased
mother). This she would say even when they drive and she sees any Toyota
Yaris, as the deceased drove one.
28. The impact this death and what both the applicants and the child witnessed was
still evident in court as they individually testified. The court had to adjourn to allow
them finish crying, and recompose for continuation of their individual evidence ,
individually. They were referred to a professional social worker, Mr. Muzi
11
Happyness Mandlazi, by their attorney, Mr. Makhubela, where they were
diagnosed with and treated for Post-Traumatic Stress (PTS).
29. MCH stated that prior to the incident the child was used to them. From birth as
the deceased was taken care of by her after the birth of the child, till she returned
to work after 6 months. As she worked 4 days in and 4 days off, they stayed with
the child on all days she was on duty, till the child was 2 years of age, and began
attending creche. Even then she would be with them over the weekends when
the mother was on duty.
30. They described the child as free-spirited, not afraid of people and would interact
well even with strangers visiting their home. However, after the incident, from the
very day she narrated to her aunt who had flown from Cape Town, when she
accompanied her to the bathroom that her father “qush qush, Wisani” (mimicking
gun sound). And she would frequently ask where her mom was, and they would
tell her she is at work, until she was mature where they would take her to her
mother’s grave. She is now in grade 5, and 11 years old. Unlike in the past, she
now avoids people and is withdrawn, even from their other grandchildren. She
would rather be alone in the bedroom playing with her cell phone than with other
kids. She would get irritated quickly, and even burst into tears when adults speak
with her sternly. She also mumbles things talking to herself when she is alone.
31. In terms of the expert social worker, Mr. Mandlazi, who confirmed receiving a
referral of the whole family from their attorney. He had five sessions with them,
especially more with the child. He discovered that there was trauma in the family
and the child, with manifestation of anger. The child indicated , in a separate
interview with her, that she wished she had a gun so she could shoot somebody.
12
She even displayed suicidal disposition, which called for immediate attention,
hence he then applied necessary psychological trauma interventions to address
PTS. The therapy is ongoing, where she needs a session per month every twelve
months, according to her stages of development.
32. In respect of the deceased’s parents, he diagnosed them with emotional trauma,
shock, anger and coping difficulties. They asked themselves a lot of questions.
MCH ended taking medication which incapacitated her from running the tuckshop
as she used to prior to the incident. In respect of RHH, who was a police Captain
ended up resigning, finding it difficult to wear uniform and carry a gun in front of
their granddaughter. They now survive on RHH’s pension income.
33. Actuarial report compiled by Mr. Ndumiso Mavimbela of Manala Actuaries and
Consultants, exhibit B herein provides for the following:
Issues:
34. It is not in dispute that:
a. The 1st and 2nd Applicants, and plaintiffs in the main case, are the parents
of the deceased, a mother of their grandchild, who is also a claimant in the
matter.
b. The deceased was killed by her husband, the unidentified second
defendant in the matter, only referred to as Emmanuel.
c. Both Emmanuel and the Deceased were police officers employed by the 1st
Respondent (1st Defendant).
d. Prior to the deceased being killed, both had been dispossessed of their fire-
arms due to allegations of domestic violence between them as a married
couple.
13
e. The said dispossessed guns were later given back to each party.
35. What is disputed is:
a. Whether the 1st Respondent is vicariously liable for the actions of the police
official, Emmanuel?
b. If the 1 st Respondent is liable, wh at is the justifiable quantum in respect of
each applicant?
Law
36. From the cases relevant, one closer to the matter in casu is the case of
Mathibela,13 where the issue to be determined in the merits, was the question
of liability only, as to “…whether the defendant can be held vicariously liable for
the actions of Sebiloane (a police reservist), in shooting the plaintiff (a girlfriend):
(i) at a private function;(ii) when he was not in uniform; (iii) travelling in his own
motor vehicle; (iv) not on duty; (v) pursuing his own interest (on his own frolic);
(vi) having deviated from the generally accepted norm.”14
37. If one follows the arguments of the Respondent’s counsel in our matter, he paints
almost the same the picture as in Mathibela , where a policeman shot his own
partner, within the privacy of her home. Sebiloane was not authorised to carry
firearm off duty, his seniors omitted to ensure he surrendered the firearm before
going home . Also, there was evidence that he had internally been previously
disciplined for discharge of firearm and yet the defendant did not ensure that he
13 In Mathibela v The Minister of Police 2020 JDR 0157 (GP) 2020.
14 Mathibela supra at para 2.
14
underwent psychological debriefing , as required. Mavundla J held that the
Minister is liable. However on appeal, Burger AJ and Mazibuko AJ overturned this
decision, while a minority decision of Makgoba J agreed with the court ‘a quo’.15
Primarily, the majority’s decision was based of the fact that evidence of previous
misuse of a firearm by the employee, Sebiloane, had not been pleaded. So, had
it been pleaded it seems the appeal would not have been upheld.
38. Another case that I will zoom into is that of Booysen 16 where Ms. Booysen’s
boyfriend, Mongo, a police officer on duty, in police uniform, was brought in a
police vehicle to her home for dinner. The colleague who left him there was meant
to fetch him later on for him to continue with his police duties for the night. After
meals, while they were seated outside without a quarrel, he just drew a service
pistol, shot her in the face, and then turned the pistol on himself, fatally.
39. At this stage of enquiry various factors and considerations should be weighed as
was formulated Rabie17 and developed in K18 and refined in F.19
40. It is trite that the test for vicarious liability is a two-stage enquiry for the imposition
of vicarious liability in the so -called deviation cases. 20 Deviation is a matter
where: firstly, subjectively speaking the wrongdoer was not on his master's
business and therefore did not create a vicarious link, having regard to these
subjective considerations of the wrongdoer. Secondly, the state of enquiry is
15 Minister of Police v Mathibela 2022 JDR 3316 (GP).
16 Booysen v Minister of Safety and Security 2018 (6) SA 1; 2018 (2) SACR 607 (CC).
17 Rabie v Minster of Police 1986 (1) SA 117 (A);
18 K v Minster of Safety and Security 2005 (6) SA 419 (CC)
19 F v Minister of Safety and Security 2012 (1) SA 536 (CC).
20 K v Minster of Safety and Security 2005 (6) SA 419 (CC); and F v Minister of Safety and Security 2012 (1) SA
536 (CC) at [40]-[49].
15
whether, objectively speaking, there is a sufficiently close link between the
employee’s conduct and the business of the employer.
41. In respect of the first subjective requirement Emmanuel was pursuing his own
interest (on his own frolic), while on duty, expected to be in his post in
Randfontein. He was not on his master’s business. He had also deviated from the
generally accepted norm of his employer, SAPS . In respect of t he second
requirement, whether objectively speaking, there is a sufficiently close link
between the Emmanuel’s conduct and the business of his employer, that requires
attention.
42. In casu , Emmanuel was on duty , in the Randfontein Tactical response team.
Accordingly should have been in police uniform. Even though when he arrived at
his cousin’s house asking for a trouser from her husband to wear, he was
apparently in a gown.21 He was also driving his own private Ford Ranger, known
by neighbours, and seen speeding out of the complex shortly after the shooting.
He used his service Vektor Z88 9mm pistol to shoot the deceased. The deceased
was equally a police officer who was off -duty, and whose firearm was removed
from its safe by police attending to the crime scene after her demise.
43. The question remains in this case whether there is a sufficient link between the
conduct of Emmanuel and his employment to impose vicarious liability on the
Respondent.
44. The normative factors to be considered were stated in F, where Mogoen g CJ
enumerated them as follows : "…a) the state's constitutional obligations to protect
21 Exhibit A, police docket.
16
the public; b) trust that the public is entitled to place in the policeman, c) the
significance, if any, of the policeman having been off duty and on standby duty,
d) the role of a simultaneous act of omission to protect the victim or commission,
and e) the existence or otherwise of an intimate link between the policeman's
conduct and his employment. All these factors complement one another in
determining the state's vicarious liability in this matter."22
45. It is trite that it is the Minister’s constitutional obligation to protect the public, and
it is for the fulfilment of that obligation and purpose that Emmanuel was employed.
46. In respect of the trust members of the public should have in the police, it was
clearly determinable in K and F, as there was no relationship between the police
officers and the victims hence their need to trust police officials. However, where
there is a close relationship between an officer and the victim, whether a romantic
or family relationship , the trust element in relating to the offending officer is
considered missing . This is evident in constitutional court case of Booysen v
Minster of Safety and Security ,23 which discusses both the Eastern Cape High
Court decision and that of the SCA, which remains in force as the Con -Court
majority dismissed the appeal on jurisdictional grounds. The Eastern Cape High
Court downplayed the significance of this element of trust where there was a
romantic relationship as not being primary to prove vicarious liability , but rather
the use of firearm, relying on Pehlani.24
22 K supra at para
23 Booysen v Minister of Safety and Security 2018 (2) SACR 607 (CC).
24 Pehlani v Minister of Police (2014) 35 ILJ 3316 (WCC) ([2014] ZAWCHC 146.
17
47. Reliance by the Eastern Cape High Court, the court of first instance, on the case
of Pehlani 25 was criticised by the SCA majority decision of Makgoka AJ on the
basis that it imposed ‘strict liability’ on the Respondent, which would only be
appropriate if the said Respondent was able to foresee that the employee would
pose a danger to the public.
48. In Minister of Safety and Security v Nancy Msi 26 the Supreme Court of Appeal
cited its own judgment in the Booysen matter where the Supreme Court of Appeal
held that:
" 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 s lives by being placed in possession of a
firearm, and despite thi s he or she nevertheless was issued with a firearm
or permitted to continue possessing it. Such was the situation in F, where
the police officer was retained in the employ of SAPS as a detective despite
previous criminal convictions".
49. I pause to state that ‘in casu ’, it is clear that there was a history of domestic
violence between Emmanuel and the deceased , which had spilled into th eir
workplace, the police station in which they both worked as police officers . With
the intervention of the deceased’s father among others, a police captain himself
in the SAPS, both parties were disarmed of their service pistols. Though within a
week of this disarmament, they were given back their service pistols. RHH, the
deceased’s father, does not know how this occurred without a proper enquiry into
25 Pehlani v Minister of Police (2014) 35 ILJ 3316 (WCC) ([2014] ZAWCHC 146.
26ZASCA 26 (28 March 2019 Case no 273/2018 (2019).
18
fitness to possess a fire -arm, in terms of the Fire Arms Control Act 60 of 2000.
Under cross-examination confronted with SAP 96 document, which among others
indicated that Emmanuel was “not unfit to possess a fire arm”, his response was
that from his experience that SAP 96 form is used by the SAPS inhouse social
worker when engaging the parties in dispute. He maintained that it does not point
to the aforementioned prescribed enquiry being held, in terms of his experience
as a uniformed Captain who presided over these enquiries himself for years.
50. From the evidence before me it is clear that the couple had disputes over money,
and Emmanuel was a jealous husband, who always made allegations against the
deceased that she was in romantic relations with every male crew she was paired
with at work, within the course and scope of employment.
51. I therefore conclude, on this aspect that the employer was aware of Emmanuel’s
erratic demeanour. It was foreseeable that he could misuse his service pistol to
endanger lives of others, especially his wife and colleagues he suspected to be
having an affair with the deceased when the respondent or its functionaries re-
issued Emmanuel with a firearm, without psychological intervention to ensure he
is mentally safe. Strict liability is justified in the circumstances of this case.
52. Zondo CJ (then DCJ) in his dissenting judgment in Booysen27 after reasoning why
he would have decided otherwise in respect of jurisdiction, a ground for dismissal
of appeal, he highlights that the statutory and constitutional duty to prevent crime
and protect the public from crime does not exclude family members, friends and
lovers of a police officer. A person having a relationship with a police officer is not
27 Booysen supra at 109-109
19
owed less or no protection by that officer in comparison to the broader public. I
agree with the learned CJ in this respect, otherwise this would amount to
promotion of domestic violence and gender -based violence, which public policy
is at odds with.
53. I have already stated that from the evidence of Hobyani, Emmanuel was on duty
when he committed the heinous act, and possibly in uniform. The deceased
possibly did not even expect him home during the early hours of Monday the 29th
January 2018, as he was on duty, while she was not, but at home with their child.
54. In my view, the fact that the defendant was aware of the character or disposition
of Emmanuel, and no appropriate intervention as above stated was implemented
prior to him or both of them being given the gun back their service pistols, this
amounts to an o mission on the part of the Respondent on its constitutional
imperatives, to ensure that when Emmanuel was allowed to possess a firearm,
the public was safe. Emmanuel’s action fulfils both the omission and commission
requirement, thereby proving a close connection between the wrongful conduct
and the business of the respondent.28
55. In Mashongwa,29 the Constitutional Court said the following in respect of the
responsibility of state organs:
“…the standard to be applied is not that of the reasonable person, but that of a
reasonable organ of state. It held that a reasonable organ of state is expected
to take reasonable measures to advance the realisation of the rights in the Bill
of Rights; that the availability of resources is an important factor when
28 Booysen supra at para 103-104.
29Mashongwa v Passenger Rail Agency of South Africa [2015] ZACC 36; 2016 (3) SA 528 (CC); 2016 (2) BCLR
20
determining what steps are available to the organ of state and whether
reasonable steps were in fact taken; and that it is necessary for the organ of
state to present information to the court to enable it to assess the
reasonableness of the steps taken.”
56. Mindful of the fact that the respondent’s defence was struck out, and its counsel
could not do not much, but only test the evidence of the Applicants, I nonetheless
have no evidence of any reasonable steps taken by the Respondent prior to
restoring Emmanuel’s pistol back to him.
57. Taking all the above factors into consideration, I hold that there is a close
connection between the conduct of Emmanuel and the business of the employer.
The minister is therefore vicariously liable for the actions of Emmanuel and the
damages suffered by all three applicants in the matter.
Quantum of damages:
58. It is trite that RH would be entitled to be compensated for the loss of support by
her mother, the deceased, as a result of the vicarious liability of the first
respondent, emanating from the actions of Emmanuel.
59. It is an undisputed fact that the time RH’s mother was killed she was only three
years old. She is 10 at the time of the hearing of this matter. An actuarial report ,
Exhibit B, compiled by Mr. Ndumiso Mavimbela of Manala Actuaries and
Consultants, specifically focuses only on addressing the child’s claim and needs
to determine what she is entitled to claim from the first respondent , and is
therefore helpful to the court. In addition, the evidence of both grandparents, and
21
also the evidence of the therapist social worker, Mr. Muzi Happiness Mandlazi, is
pivotal in respect of the child. The latter’s evidence is relevant for the two adult
applicants’ claims too.
60. I do accept that RH has suffered emotional trauma and did suffer shock out of
witnessing her mother being shot by her father. The observations of the child by
the grandmother, the grandfather and the Mr. Mandlazi do confirm same. The
arguments by the Respondent’s counsel that the child being withdrawn , easily
irritated and avoiding people, including her immediate cousins she grew up with
when they are in the house is just a normal change that comes with growth simply
because at school she is performing well, does not hold wate r. Clearly as she
grows up, now understanding what really happened, that her mother is not
coming to fetch her to their home in Randfontein as she is dead. She has been
taken to her grave several times. She can’t see her father who is in prison serving
his long sentence. She is aware that her grand parents are not her parents, seeing
cousins referring to them correctly, unlike her calling them mom and dad. It is
impossible that all these circumstances would not a ffect her negatively. I agree
with the social worker that she does need further therapy consultations to bring
her closer to normality.
61. First applicant is receiving an annual payment on behalf of RH, from the
Guardian’s fund at the Master of the High Court, which is used to address her
school need, though never enough, as it does not cover school excursions etc.
they have to augment. First applicant also receives foster grant money of R1160
monthly from the Department of Social development. These sources of income
are far from being sufficient to address the need of the child, hence the claim for
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loss of support. According the actuarial report of Mr. Mavimbela in respect the
first scenario, until RH reaches 18 years of age, he recommends R1 052 049. In
respect of the second scenario, which speaks to the scenario until she reaches
age 21, he quantifies it at R1 231 260.
62. Counsel for the respondent argued that the actuary’s recommendations, above,
did not factor in the social grant and income from the guardian’s fund. Firstly, I
am not aware how much is left in the guardian’s fund, and whether it is sufficient
to continue m aintaining the child’s school fees till she reaches grade 12 and
beyond or not. This is especially because the deceased mother was still a
constable, of not such a long period in the SAPS.
63. Social grant of R1160 is by far insufficient in comparison with what the deceased
would be spending on RH. Even if factored in the second scenario, per annum it
will be only R13 920,00, and times the remaining 11 years till she turns 21, which
is relevant even according to argument of the respondent’s counsel that the child
is performing well academically, its highly probable she may proceed to tertiary
education till she is 21 years old. On a simple calculation it amounts to a total of
R153 201. If deducted, which I do not recommend, the total becomes R1 078
140, on a loss of support claim only, excluding the emotional shock and trauma
delictual claim and further consultations that she still has to attend for therapy.
These have also not been added in the report, otherwise the figure would be
bigger. These tend to off -set each other. Efforts by second applicant to access
Emmanuel’s pension funds to maintain RH were not successful, as only he can
consent to their usage.
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64. Even though the actuary did not compile any report regarding the first and second
applicants, the evidence of Mr. Mandlazi does shed light on how these adults and
parents of the deceased became affected, including the whole family, some who
are not parties herein. Even as they individually testified in court, the court had to
take pauses for them to emotionally cool down, as they were overcome by grief
and breakdown in tears as they related what happened at the scene of the crime,
and how the whole ordeal s ubsequently changed their lives, with the first
applicant stopping to run the tuck-shop, and the second applicant resigning from
SAPS out of being unable to reconcile trying to bring healing on RH, and having
to wake up and wear the same police uniform and carrying a firearm, both which
her parents used to wear and carry, which traumatised her, according to him. He
ultimately resigned as a captain, and both he , first applicant and RH survive on
his pension.
65. In exercising its discretion, the Court should make a discount of for
“contingencies” or the “vicissitudes of life” such as illness, unemployment, life
expectancy, early retirement and other unforeseen circumstances. 30 The
determination of the general contingency deductions to be made lies squarely in
the discretion of the Court, which must decide what is fair and reasonable31. The
court is therefore expected to use contingency deductions to provide for any
future circumstances that may occur but cannot be predicted with accuracy or
precision. Basically, with these unforeseen contingencies, the longer the period
the more the acc uracy of the amount deemed to be probable income of the
30 Road Accident Fund v Guedes 2006 (5) SA 583 (SCA), at para 3.
31 Fulton v Road Accident Fund 2012 (3) SA 255 (GSJ), para 95-96; and Nationwide Airlines (Pty) Ltd (in
liquidation) v SA Airways (Pty) Ltd [2016] 4 All SA 153 (GJ), at para 147.
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plaintiff, the higher the contingencies must be applied. The actuarial calculations
are therefore helpful to the Court, though not binding, as the Court’s discretion is
wide to award compensation it considers fair and reasonable. The Courts have
recognised that the fortunes of life are not always adverse, but may be at times
be favourable.32
66. In Glenn Marc Bee vs RAF33 it was states that “It is trite that an expert witness is
required to assist the court and not to usurp the function of the court. Expert
witnesses are required to lay a factual basis for their conclusions and explain their
reasoning to the court. The cour t must satisfy itself as to the correctness of the
expert's reasoning.”
67. Also, in Masstores (Pty) Ltd v Pick 'n Pay Retailers (Pty) Ltd34 it was stated that:
“[I]astly, the expert evidence lacked any reasoning. An expert's opinion must be
underpinned by proper reasoning in order for a court to assess the cogency of
that opinion. Absent any reasoning the opinion is inadmissible”.
68. I am satisfied with the evidence of both experts, one via viva voce evidence, and
the other via expert report. In respect of RH it is my view that there is no need to
factor any contingencies as the fortunes of life are not always adverse.
69. In the result, I make the following order:
a. The First Respondent (first defendant in the main action) held vicariously
liable 100% of the first, second and third Applicants’ proven damages.
32 Southern Insurance Association v Bailey N.O. (supra) at para 117B.
33 2018 ZASCA 52 at para 22.
34 [2015] ZASCA 164; 2016 (2) SA 586 (SCA) para 15.
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b. The Defendant shall pay the RH the total amount of R 1 931 260 (One
Million, Nine hundred and Thirty-One thousand, two hundred and sixty rand)
only.
c. The Defendant shall pay MCH the total amount of R500 000 (Five hundred
thousand rand) only.
d. The Defendant shall pay RHH the total amount of R500 000 (Five hundred
thousand rand) only.
e. The amount in paragraph b is made up as follows:
a. Loss of support: R 1 231 260 (Two Million, Nine hundred and
Forty-seven thousand, six hundred and ninety-two rand) only.
b. Emotional shock and discomfort: R700 000 (Seven Hundred
Thousand rand) only.
c. Payments will be made directly to the trust account of the
Plaintiff’s attorneys within 180 (one hundred and eighty) days from the
date of the granting of this order.
d. The Defendant is to pay the Plaintiff’s agreed or taxed High Court
costs as between party -and-party, such costs may include the
following, provided that same is subject to the discretion of the taxing
master:
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Counsel for the Respondent: Adv B Letuka
Attorneys for the Respondent: State Attorney,
10th Floor, North State Building,
95 Albertina Sisulu Street, Johannesburg
Mr. T. Mpulo.
Date of the Hearing: 16 July 2025
Heads of Argument: 21 July 2025
Date of Judgment: 11th December 2025