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[1992] ZASCA 172
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Minister of Law and Order v Ngobo (642/91) [1992] ZASCA 172; 1992 (4) SA 822 (AD); [1992] 2 All SA 492 (A) (28 September 1992)
642/91 /mb
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between
THE MINISTER OF LAW AND ORDER
Appellant
and
DINA NOTATSI NGOBO
Respondent
CORAM
: CORBETT CJ, KUMLEBEN, EKSTEEN JJA, HOWIE et KRIEGLER AJJA
HEARD
: 3 SEPTEMBER 1992
DELIVERED
: 28 SEPTEMBER 1992
JUDGMENT
KUMLEBEN JA
/...
1.
KUMLEBEN JA
:
The fatal shooting of Abednego Buthise
Ngobo by a police constable during the early hours of the morning of 19 April
1986 gave rise
to the present dispute. Initially there were multiple plaintiffs
and defendants. However, before and during the trial certain parties
to the
action fell away. In the result the mother of the deceased was the sole
plaintiff, now the respondent, and the Minister of
Law and Order the remaining
defendant, the present appellant. The respondent's claim was for damages, based
upon loss of support
as a result of the death of her son, for which she alleged
the appellant was vicariously liable. The trial court, Kuhn J sitting
in the
Cape Provincial Division, upheld her claim and ordered the appellant to pay
damages in an amount of R26 350 with interest;
and to pay costs, restricted to
those incurred in the employment of one counsel. With leave of the court a
2/...
2.
quo
, the appellant appeals against the substantive order
granted and the respondent against the qualification attaching to the costs
order.
On the merits two men, Messrs Spayire and Flka, gave evidence for the
respondent. Two police officers, Colonel Burger and Captain
Koeglenberg,
testified for the appellant.
During the afternoon of 18 April 1986 and that
night the deceased attended a wedding celebration. After midnight he and his two
companions,
Spayire and Flka, were walking in Zone 4, Langa, Cape Peninsula. Two
men, Charlie and Ngili (who turned out to be police constables)
approached them
on foot from the opposite direction. As the two groups crossed, Fika
unintentionally bumped against one of the policemen.
When Fika apologised, the
policeman swore at him. An argument ensued involving abusive language on both
sides. At a certain stage
one of the
3/...
3. policemen, and immediately afterwards the other, drew his .38
service revolver. Shots were fired, one of which injured the deceased.
He was in
due course conveyed to hospital and subsequently died. At the time of the
shooting the two policemen were standing next
to each other and a short distance
from the deceased and his group. The eye-witnesses were unable to say which of
the two assailants
fired first; how many shots were discharged; which one caused
the injury; or who was responsible for that shot. However, at the pre-trial
conference the appellant admitted that it was Charlie who had killed the
deceased. After the shooting the two constables ran into
a yard of a nearby
house. Spayire, with commendable courage, followed them and asked them why they
had deserted an injured person.
Their response was to threaten to shoot him. He
fetched the deceased and brought him to the house where the policemen were still
present. He,
4/...
4. and Fika who had joined them in the house, overheard the
policemen arguing about who had fired the fatal shot. Fika deduced from
the
spent cartridge cases taken from each revolver that Charlie had fired three
shots and Ngili two, five shots in all. The policemen
said they were going to
the police station at Langa. Standing orders required them to report immediately
the use of an issued fire-arm
whenever shots were discharged. When they arrived
at the police station Spayire and Fika were already there. At this stage they
learned
for the first time that their assailants were policemen. Captain
Koeglenberg was summoned to conduct an impartial administrative
enquiry into the
shooting. This is routine procedure whenever a policeman uses a fire-arm whether
or not he was on duty at the time.
The captain arrived at the Langa police
station at 4 a m.
The facts thus far recounted were common
5/...
5. cause or undisputed. The question of intoxication is less clear.
Fika said in his evidence-in-chief that both policemen were "drunk"
in that they
were "stammering when they talked" at the house and apparently also at the
police station. Under cross-examination this
assertion was not challenged nor
was he ever asked whether there were any other indications of intoxication.
Captain Koeglenberg
said that both policemen appeared to him to be sober when he
saw them at 4 a m. This evidence is not necessarily contradictory. It
is not
clear for how long the four of them were at the police station before the
captain arrived or whether, according to Fika, they
were still "drunk" at 4 a m.
As regards the condition of the eye-witnesses, Fika said that he was at the
wedding celebration from
about 5 pm until after midnight during which period he
drank sorghum beer, malt beer (six or seven glasses) and brandy. He also had
6/...
6. some more beer at the home of a friend before the encounter with
the policemen. Spayire said that he also drank beer with this
friend but - for
an unexplained reason - not at the celebration which he too attended. Apart from
this direct evidence, the occurrence
itself strongly suggests that some if not
all of the participants were to an extent under the influence of liquor. There
is no other
reasonable explanation for such a trivial incident causing such a
wrangle or for the irrational behaviour on the part of the policemen.
The two constables, members of the uniform branch of the S A Police, were
stationed at Guguletu, Cape Peninsula. The incident took
place in an area where
they would not ordinarily have carried out police work when on duty. In fact
they were off duty at the time
and not in uniform. At no stage did they
announce, or otherwise disclose, that they were
7/...
7. policemen. They did not attempt to effect an arrest or purport to
be acting in their official capacity. Their use of fire-arms,
one need hardly
say, was wholly unjustified. The revolver each possessed was issued for his
protection and use during the course
of official duties. Before a subordinate is
thus armed an officer takes into account his record and makes suitable enquiries
as to
his fitness to be entrusted with a fire-arm. Both policemen were
authorised to possess a service revolver. (In the case of one of
them, Charlie,
a number of contraventions of the police disciplinary code were on record but
both witnesses for the appellant said
that there were no grounds for not issuing
him with a fire-arm.) Due to civil unrest in certain townships and several
attacks upon
the lives of policemen when off duty, a decision was taken to allow
a policeman to retain for his protection the revolver issued
to him,
notwithstanding the fact that he was no
8/...
8.
longer on duty.
In argument before us counsel for the
respondent, Mr
Veldhuizen
, supported the conclusion that the appellant
was vicariously liable, firstly, with reference to the actual shooting of the
deceased;
and secondly, on the ground that Ngili failed to prevent his colleague
from firing the fatal shot. Thus an act or, alternatively,
an omission is relied
upon. The trial court based its decision on the first ground with particular
reference to what was said in
the majority judgment in the case of
Minister
of Police v Rabie
1986(1) S.A. 117(A).
In a brief review of the law on this subject prior to
Rabie
's case two
early decisions of this court serve as a useful starting point: in fact to judge
from their frequent citation in subsequent
cases they appear as lodestars in
this firmament. In
Mkize v Martens
1914 AD 382
at 390 Innes JA, after a
discussion
9/...
9.
of the views of our common law writers and other authorities
on vicarious liability, adopted the principle that:
"[A] master is answerable for the torts of his servant
committed in the
course of his employment
, bearing in mind that an act done by a servant
solely for his own interests and purposes, and outside his authority, is not
done
in the course of his employment, even though it may have been done during
his employment."
(In this quoted passage, and in others to
follow, I have italicised for emphasis.) In
Estate Van der Byl v
Swanepoel
1927 AD 141
the test was stated to be whether the servant was
"
engaged in the business of his master
" (per De Villiers JA at 152) and
this requirement was thus explained by Wessels JA at 147:
"It is clear therefore that this Court in applying the general principle that a
master is liable for the torts of his servant acting
within the scope of his
employment has taken the extended view of the master's liability to third
parties [rather] than the narrower
one which would confine
his
10/...
10.
liability strictly to acts done within the instructions or necessarily
incidental thereto."
The critical consideration is therefore
whether the wrongdoer was engaged in the affairs or business of his employer. (I
shall refer
to it as the "standard test" or "general principle".) It has been
consistently recognised and applied, though - since it lacks exactitude
- with
difficulty when the facts are close to the borderline.
The problem of
application presents itself particularly in what have become known as "deviation
cases": instances in which an employee
whilst in a general sense still engaged
in his official duties deviates therefrom and commits a delict.
S A Railways
& Harbours v Marais
1950(4) S.A. 610(A) and
African Guarantee &
Indemnity Co. Ltd v Minister of Justice
1959(2) 437(A) are perhaps the best
known examples of such cases. The former case involved an engine driver
11/...
11 .
who, acting contrary to instructions, allowed a passenger to
travel in the locomotive. As a result he was killed. On appeal the decision
allowing his widow to sue in
forma pauperis
was reversed. At 617 B - D
Watermeyer CJ pointed out that:
"[T]he test is not whether the act or omission complained of occurred whilst the
servant was engaged in the affairs of his master
but whether it constituted a
negligent performance of the work entrusted to the servant. The act or omission
may occur whilst the
servant is engaged in the affairs of his master and yet the
master may not be liable. For instance a servant may, whilst engaged
in the
affairs of his master, assault a third person in order to satisfy a grudge of
his own such assault being quite unconnected
with his master's work. In such a
case the master would not be liable, for the servant in committing the assault
was not performing
the work entrusted to him, or doing anything ancillary to
it."
The general principle as expressed in this passage, if
considered in isolation, may be said to have been too narrowly stated but words
used in a judgment are not to be construed as though they were carefully
selected by
12/...
12. the draftsman of a statute. Be that as it may, the illustration
given in the quoted passage is for present purposes instructive.
In the other
case, the
African Guarantee
decision, Ramsbottom JA concluded:
"[T]he constables [after deviating from their police duties] did not entirely
abandon their employer's work but continued, partially,
at any rate, to do it
while they were devoting attention to their own affairs; they were still
exercising the functions to which
they were appointed. Their employer,
therefore, is liable." (447 E - F)
Finally, to complete a
selective - though I trust representative - reference to certain decisions of
this court preceding
Rabie
's case, it should be pointed out that in both
Mhlonqo and Another N 0 v Minister of Police
1978(2) S.A. 551(A) and
Minister van Polisie en 'n Ander v Gamble en 'n Ander
1979(4) S.A. 759(A)
the policemen involved were on duty; they were proved to have acted within the
scope of their
13/...
13. employment; and they were carrying out police functions or
genuinely believed themselves to be so engaged. Each of these decisions
was
concerned with a narrower issue: whether
within such context
"the
policeman was engaged upon a duty or function of such a nature as to take him
out of the category of servant
pro hac vice
" as it was put in
Mhlonqo
's case at 567F. (These two decisions are commented upon in more
detail in
Rabie
's case at 126E - 128E.) In each it was decided that the
Minister was liable. And, one notes in passing, in each of these decisions
the
general principle is affirmed:
Mhlongo
at 567E and
Gamble
at
764G.
Reverting to the facts of the present case, there can be no doubt that
applying the standard test the appellant ought not to have
been held liable on
the first ground, that is, for Charlie's wrongful act. The constables, as I have
said, were not on duty and they
14/...
1 4. did not at any stage purport to be carrying out any police
function. They unnecessarily resorted to the use of fire-arms in the
course of
an equally unnecessary altercation with strangers. They were in no sense engaged
in the affairs of the appellant, the only
connection between their conduct and
their employment being their use of the revolvers they were authorised to
retain. This fact,
though of relevance in applying the standard test, is not in
itself one that determines whether it has been satisfied. As Schreiner
JA
observed:
"Where the delict arose out of the use by the servant of the master's vehicle or
other form of property this feature may assume importance,
but such cases must
still be dealt with in accordance
with the general principle
The ownership of the vehicle through which the harm was done, though it may
provide material for inference, is by itself irrelevant.
Just as the master may
be liable though the servant is using his own vehicle about the master's
business (
Canadian Pacific Railway Company v. Lockhart
,
1942 A.D. 591
),
so the master will not be liable
15/...
1 5.
merely because he is the owner of the vehicle used
by the servant and has entrusted it to him (cf.
Hewitt v. Bonvin and Another
,
1940 (1) K.B. 188).
On the same lines is para. 238 of the
American
Restatement, Agency
, which reads,
'Except as stated in
paras. 212 to 214' (these are not relevant)
'a master is liable for harm caused by the use of instrumentalities entrusted
by him to a servant only if they are used within the
scope of the
employment.'"
(
Carter & Co (Pty.) Ltd. v McDonald
1955(1) 202(A)
207 D - G.)
Counsel for the respondent conceded that on the
authority of the abovementioned decisions of this court, and others to which
there
is no need to refer, the claim of the respondent ought not to have been
sustained. But he submitted that "this Court in the
Rabie
judgment
considerably broadened the traditional application of the rule and, it is
respectfully submitted, rightfully so."
In that decision the errant
policeman, Van der Westhuizen, attended a social function on New Year's Eve. He
was forced to leave after
a complaint
16/...
16. about his behaviour had been made at a police station. Put out
by this, he later that night waylaid the plaintiff in the street
near the place
from which he, Van der Westhuizen, had been evicted. On the pretext that the
plaintiff was about to commit the offence
of housebreaking, Van der Westhuizen
first assaulted him by hitting him on the head with a wheel-spanner and then
purported to arrest
him. He followed this up with a second and more serious
assault, after which he took the plaintiff to the police station and fabricated
certain charges against him. The plaintiff was detained in custody. In due
course he stood trial only to be acquitted on all charges.
His resultant claim
for damages against the Minister of Police was allowed in the court a.
quo
.
The appeal to this court was dismissed. Van Heerden JA dissenting. The facts,
which I have no more than sketched, are fully set out
in the dissenting
17/...
1 7. judgment. Relying on them Van Heerden JA concluded:
"[I]t is not possible that Van der Westhuizen could have been under the mistaken
impression that the respondent was attempting to
commit a crime," (128J)
"Van der Westhuizen was annoyed because he had been asked, and indeed compelled,
to leave the home of his former in-laws. In order
to give vent to his feeling of
frustration he assaulted and purported to arrest the respondent." (129H)
"By that stage [when the second assault took place] Van der Westhuizen's
stratagem to regain access to the function had failed, and
the inference that he
was continuing to take out his anger and frustration on the luckless respondent
appears to be inescapable."
(129J)
"[H]e acted wantonly and maliciously throughout knowing full well that the
respondent was entirely Innocent." (130B)
In the result Van
Heerden JA decided, applying the standard test and in accordance with the
general principle, that the appellant
was not liable.
In the majority judgment Jansen JA accepted, in favour of the appellant, the
above findings and in
18/...
18. particular agreed "that Van der Westhuizen was actuated
by
malice." (134B) The Minister of Police was none the less held to be vicariously
liable. The reasoning on which this conclusion
was based appears from the
following passage from the judgment (134C - 135B), which I have for ease of
reference and discussion divided
into numbered paragraphs:
(i) "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 ar. act by
the 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. And it may be useful to add that according to the
Salmond
test (cited by GREENBERG JA in
Feldman (Pty) Ltd v Mall
1945 AD 733
at 774):
'a master ... is liable even for acts which
19/...
1 9.
he has not authorized provided that they are so connected with acts which he
has authorized that they may rightly be regarded as modes
- although improper
modes - of doing them ...'
(ii) Our leading cases mostly deal with deviations by the servant from his
duties at a time he is actually engaged on his master's
work, and the tests
there applied do not seem wholly apposite to the present type of case where the
servant during the pursuit of
his own private affairs ostensibly embarked on his
master's business. Nor do I understand the judgments of, eg WATERMEYER CJ and
TINDALL JA in
Feldman (Pty) Ltd v Mall
(
supra
) or that of
RAMSBOTTOM JA in
African Guarantee & Indemnity Co v Minister of
Justice
1959(2) SA 437 at 447 necessarily to go beyond the deviation cases
and to prescribe rules for all circumstances.
(iii) In my view a more apposite approach to the present case would proceed
from the basis for vicarious liability mentioned by WATERMEYER
CJ in
Feldman
(Pty) Ltd v Mall
(
supra
at 741):
"... a master who does his work by the hand of a servant creates a risk of
harm to others if the 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
20/...
20.
improper conduct or negligence in carrying on his work
...'
(iv) By approaching the problem whether Van der Westhuizen's acts were done
'within the course or scope of his employment' from the
angle of creation of
risk, the emphasis is shifted from the precise nature of his intention and the
precise nature of the link between
his acts and police work, to the dominant
question whether those acts fall within the risk created by the State. By
appointing Van
der Westhuizen as a member of the Force, and thus clothing him
with all the powers involved, the State created a risk of harm to
others, viz
the risk that Van der Westhuizen could be untrustworthy and could abuse or
misuse those powers for his own purposes or
otherwise, by way of unjustified
arrest, excess of force constituting assault and unfounded prosecution. Van der
Westhuizen's acts
fall within this purview and in the light of the actual events
it is evident that his appointment was conducive to the wrongs he
committed."
In my respectful view this reasoning
warrants comment and is open to criticism in certain respects.
(i) Initially, in the first paragraph, the
21/...
21 . general
principle is acknowledged to the extent that it is said that there must be a
"sufficiently close link" between the acts
of the servant in his own interests
and the business of his master. (And in so far as the servant's intention is a
factor to be taken
into account in the application of the standard test, it is
accepted in the judgment that Van der Westhuizen's purpose was "totally
self-serving and
mala fide
": 134A)
(ii) The implication in this paragraph would seem to be that the standard
test as laid down in our case law has reference to "deviation
cases" and is to
be restricted to them; or that at the very least the general principle does not
necessarily apply to "the type of
case where the servant during the pursuit of
his own private affairs ostensibly embarked upon his master's business." But in
those
leading cases which were concerned with "deviation" the essential
reason
22/...
22.
for holding the master liable was that the servant to an
extent and in a sense continued to be engaged in the affairs of his master
at
the time the delict was committed. This is borne out,
inter alia
, by what
was stressed in the two decisions cited in this quoted paragraph of the majority
judgment. In
Peldman
's case at 742 Watermeyer CJ said:
"If he does not abandon his master's work entirely but continues partially to do
it and at the same time to devote his attention
to his own affairs, then the
master is legally responsible for harm caused to a third party which may fairly,
in a substantial degree,
be attributed to an improper execution by the servant
of his master's work, and not entirely to an improper management by the servant
of his own affairs."
(And see the
African Guarantee
case 447 E - F
supra
)
If the standard test is to be accepted as the
appropriate one for cases in which at the relevant time
the servant had
deviated
from the course of his regular
employment, it follows, in my view, that this test
23/...
23.
applies ad
eundem
- indeed more pertinently - where
the servant cannot be said to have deviated for the reason that he was not even
remotely engaged
in his master' s affairs at any relevant stage prior to the
commission of the delict and any claim on his part to have been thus
employed at
the time of the wrong is no more than a subterfuge.
(iii) The extract from
Feldman
's case at 741 is cited in this
paragraph in support of a "more apposite approach" to be applied in preference
to the standard test.
In this regard I respectfully agree with the comment in
the minority judgment, namely, that in the quoted extract
"the emphasis falls on the employee's improper conduct or negligence 'in
carrying out his (ie the employer's) work', and that in
the present case Van der
Westhuizen did not act in furtherance of his employer's business." (132 C -
D)
24/...
24.
This is borne out by the last sentence of the paragraph
at
741 in
Feldman
' s case from which the quotation in the majority judgment
is taken. It reads:
"[I]f 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
for that harm."
(iv) In the concluding paragraph the "dominant
question" is said to be "whether the acts fall within the risk created by the
State."
But since there was no genuine link between Van der Westhuizen's acts
and his police work, and no real intention to carry out such
duties, the
question posed appears to have been the sole, not merely the dominant, one: Put
another way, having regard to Van der
Westhuizen's intention and the facts
proved, "approaching the problem ... from the angle of risk" would appear to be
the only basis
on which vicarious liability could be said to arise from
25/...
25. Van der Westhuizen's misconduct. But what is regarded as an
underlying
reason
- perhaps the main one - for attaching vicarious
liability to the employer, namely, the creation of risk (also known as "risk
liability"),
has hitherto never been regarded in our law as the consideration
which determines whether such liability is proved. As Schreiner
JA observed in
Carter & Co. (Pty.) Ltd v McDonald
(
supra
) 207B:
"[
I]n order to make the master liable the servant must have committed the
delict while engaged upon the master's business
; and that a
principal
reason
why the master is held liable may be that 'he has created the risk
for his own ends' (Feldman (
Pty.) Ltd. v. Mall
,
1945 A.D. 733
at pp. 737
-741)."
and at page 211H significantly adds:
"It is often useful to examine the reason which probably gave rise to the rule,
in order to discover the rule's limits, but
the reason, even if certainly
established, is not the same as the rule.
"
Rabie
's
case has been referred to in three
26/...
26.
subsequent decisions of this court. In
Tshabalala v Lekoa
City Council
1992(3) S.A. 21(A) the court was concerned with the unlawful
shooting of the plaintiff by a municipal policeman. The court (per E
M Grosskopf
JA) concluded that the wrongdoer had acted in the course and scope of his duties
as a servant of the respondent. It was
therefore not necessary for the court to
consider certain reservations expressed in the judgment of the court a quo about
the correctness
of the majority judgment in Rabie's case. In another case
Minister van Wet en Orde v Wilson en 'n Ander
1992(3) S.A. 920(A) the
court (per Van Heerden JA) after. commenting on the fact that the respondents
were unrepresented, found it
unnecessary to review the correctness of the
Rabie
decision though requested in argument to do so. In upholding the
appeal, the court held on the facts that the conduct of the wrongdoer
was so far
removed from any risk created by his appointment
27/...
27. as a policeman that no liability could attach to the appellant.
Finally in the as yet unreported decision in
Macala v Town Council of
Maokeng
(Case no 15/91: judgment delivered on 22 May 1992) Goldstone JA said
that the standard test was in fact part of the ratio of the
majority judgment in
the
Rabie
decision and concluded by saying that:
"It follows that the 'creation of risk' principle is directly related to the
enquiry as to whether the policeman was acting in the
course and scope of his
employment as such."
The present case can perhaps be
distinguished from the
Rabie
case on the narrow ground that, unlike Van
der Westhuizen in that case, the policemen with whom we are concerned at no
stage, whether
genuinely or ostensibly, acted as such or exercised any official
function. However, in so far as
Rabie
's case may be said to have replaced
the standard test with one based
28/...
28.
on creation of risk, I am for the reasons stated of the view
that it was wrongly decided. Moreover, whatever
direct
liability may in
certain circumstances attach to an employer as a result of a risk created by
him, this consideration in my opinion
is not a relevant one to be taken into
account when the standard test is to be applied in order to decide whether the
master is
vicariously
liable. In this regard I again refer to the quoted
passage of Schreiner JA in
McDonald
's case at 207B and must respectfully
differ from the conclusion in the extract from
Macala
's case quoted
above.
Mr
Veldhuizen
further argued that, whatever the effect or
interpretation of
Rabie
's case, considerations of "social policy" should
prompt this court to accept the creation of risk as the basis and determinant
for
vicarious liability with the requirement of reasonable foreseeability of
risk
29/...
29.
serving as the factor limiting the scope of such liability.
For this submission counsel relied on two of the main South African proponents,
Prof W E Scott and Prof J C van der Walt, of an extension of liability along
these lines. Scott's views are,
inter alia
expressed in an article
entitled "
The Theory of risk Liability and its application to vicarious
liability
" appearing in "
The Comparative and International La
w
Journal of Southern Africa
" (CILSA) Volume 12 (1979) 44. The essence of
his thesis is reflected in the following excerpts:
"According to my view, risk liability is the basis of vicarious liability. Risk
liability (or liability based upon the risk principle)
is an acceptable basis
for liability, apart from delictual liability, and these two are in essence
totally different principles of
liability and can therefore never conform to the
same basis." (Pages 49 and 50)
and
30/...
30.
"Risk liability can therefore be described as the liability of a certain person
(the defendant) for the damage caused by the typical
risks attached to a
dangerous fact for which the defendant is made responsible." (Page 50)
and
"In view of my analysis of the basic elements of vicarious liability, I have
proposed that the following must be determined: Has
the nature of the servant's
work, viewed objectively, increased the possibilities of committing the delict
or not? If so, in order
to keep the liability of the master within reasonable
limits, one must determine whether the conduct of the servant, in view of the
nature of his work, could reasonably have been foreseen." (Page
64)
(See too the author's textbook
"
Middellike
Aanspreeklikheid in die Suid-Afrikaanse Reg
" (viii
and
35 - 68).) It is noteworthy that earlier in the
article he remarks that:
"Writers have tried over a
long period to define the concept of danger
[the
correlative of risk] as a concept of law, and have
failed to do so."
(Page 47)
Van der Walt's note on
Rabie
's case, "
Die
31/...
31 .
Staat se Aanspreeklikheid vir Onregmatige
Polisie-optrede
" (THRHR Vol 51 (1988) at 515) is also referred to by counsel
for the respondent. In this note the views of the writer in his disquisition
on
"
Risiko Aanspreeklikheid uit Onregmatige Daad
" (unpublished doctoral
thesis 1974) are discussed in reference to the
Rabie
case. The following
extract from the note sets forth the basic elements which in the writer's view
ought to determine liability based
on the creation of risk:
"Die grondslag van risiko-aanspreeklikheid is myns insiens geleë in die
skepping van 'n juridies-relevante risiko. Die risikobegrip,
wat teoreties die
verskynsel van risiko-aanspreeklikheid fundeer, is normatief bepaald. Die
aanwesigheiu van 'n regtens relevante
risikoskepping is afhanklik van a
priori
bepaalde normatiewe
elemente
Wat is die normatiewe elemente van risikoskepping as grondslag van
risiko-aanspreeklikheid? Hierdie vraag verteenwoordig die wesenskern
van die
probleem ten aansien van die teoretiese regverdiging van
risiko-aanspreeklikheid. Dit stel die vraag na die regtens relevante
faktore
of
32/...
32.
omstandighede wat 'n afwyking van die skuldbeginsel noodsaak. Myns insiens
bestaan daar, vir sover dit risiko-aanspreeklikheid as
verskyningsvorm van
deliktuele aanspreeklikheid betref, drie normatiewe elements, naamlik (a)
aansienlike verhoging van die kans
op skade-intrede, (b) die verhoging van die
waarskynlikheid van ernstige benadeling, en (c) 'n ongelykheidsverhouding tussen
dader
en benadeelde. Die aanwesigheid van een of meerdere van hierdie elemente
by 'n menslike aktiwiteit kwalifiseer dit as 'n juridies-riskante
gedraging.
Hierdie normatiewe kwalifikasie van 'n gedraging ten einde regtens riskant te
wees, verseker prinsipieel 'n betreklike
omskrewe en afgebakende
toepassingsgebied van die rislkobeginsel." (517)
The writer
proceeds to contend that requirement (c) is
the justification for State
liability as a result of
unlawful police conduct and thus for the decision
in
the
Rabie
case. This conclusion is reached, one should
stress, not or the basis of vicarious liability, which
is the ground of liability pleaded in the present case,
but as an
i
ndependent
source of State liability.
For present purposes, as regards the views
expressed by these authors, I need only make the
33/...
33.
following comments. To my mind the standard test adequately serves the
interests of society by
maintaining a balance between imputing liability
without fault, which runs counter to general legal principle, and the need to
make
amends to an injured person, who might otherwise not be recompensed. Whilst
one cannot gainsay the difficulty of applying the standard
test in certain
cases, the indeterminacy of the elements of the proposed alternatives suggests
that their adoption would not make
the task of determining liability any easier.
In the circumstances there appears to me to be no sound reason for replacing a
generally
accepted principle with another, which is controversial and untried:
"
Nihil facile mutandum esse ex solemnibus
,
et recepto jure
.
Item in novis rebus constituendis evidentem esse utilitatem debere
,
ut
recedatur ab eo jure
,
quod diu aequum visum est
." (Donellus:
De
Jure Civili
, 1.12.18). Therefore, even
34/...
34.
assuming that such a step is within the competence of the court, and
not one for the Legislature to take if so minded, I do not consider
that a case
has been made out for a departure from the standard test. (Cf. South African Law
Commission: "
Report on Risk as a Ground for Liability in Delict
" Project
23 (1986) paragraph 6, page 39 in
finem
.)
The alternative ground on
which the respondent seeks to base liability - the failure to prevent the fatal
shot - raises the following
questions: whether in the circumstances of this case
Nglli was under a legal duty to take steps to prevent Charlie from shooting
the
deceased; if so, whether in failing to take any, Ngili was negligent; if this
was established, whether such action as he might
reasonably have been expected
to have taken would have prevented the fatal shot; and, if causation was proved,
whether the appellant
is to be held vicariously liable for the
35/...
35.
omission.
The general principle to be applied, and the
considerations to be taken into account, in deciding whether an omission in a
particular
case gives rise to legal liability, have been stated and explained in
Minister van Pollsie v Ewels
1975(3) SA 590(A):
"As uitgangspunt word aanvaar dat daar in die algemeen geen regsplig op 'n
persoon rus om te verhinder dat iemand anders skade ly
nie, al sou so 'n persoon
maklik kon verhinder dat die skade gely word en al sou van so 'n persoon verwag
kon word, op suiwer morele
gronde, dat hy daadwerkllk optree om die skade te
verhinder. Ook word egter aanvaar dat in sekere omstandighede daar 'n regsplig
op 'n persoon rus om te verhinder dat iemand anders skade ly. Versuim hy om
daardie plig uit te voer, ontstaan daar 'n onregmatige
late wat aanleiding kan
gee tot 'n eis om skadevergoeding." (596%)
and
"Dit skyn of die stadium van ontwikkeling bereik is waarin 'n late as
onregmatige gedrag beskou word ook wanneer die omstandighede
van die geval van
so 'n aard is dat die late nie alleen morele verontwaardlging ontlok nie maar
ook dat die regsoortuiging van die
gemeenskap verlang dat
die
36/...
36.
late as onregmatig beskou behoort te word en dat die gelede skade vergoed
behoort te word deur die persoon wat nagelaat het om daadwerklik
op te tree."
(597A - B)
and
"Net so goed as wat'n reddingsplig in sekere omstandighede 'n regsplig mag wees,
sou 'n beskermlngsplig 'n regsplig kan wees.
En dit sou van al die feite
afhang of so 'n plig 'n regsplig sou wees of nie. Klaarblyklik is dit onmoontlik
om in die algemeen vas
te stel wanneer so 'n regsplig sou ontstaan
. In die
onderhawige geval het ons te doen met 'n aantal polisiemanne wat diens doen in
'n polisiekantoor, 'n gebou waaroor die Polisie
beheer het en waarheen 'n gewone
burger, onder ander, kan en moet gaan om 'n klagte
te le Die eiser is aangerand in die
polisiekantoor onder beheer van die Polisie en ten aanskoue van 'n aantal
polisiemanne van wie dit gesamentlik redelik moontlik,
selfs maklik, was om die
aanval op eiser te verhoed of te beëindig. Ook is dit in hierdie saak 'n
bykomende faktor dat Wood,
in die besondere omstandighede, as sersant gesag kon
uitoefen oor Barnard." (597E - H)
The considerations which
weighed with the court in
deciding on those facts that there was a legal duty
are
stated in the last-quoted passage. None feature in the
present case and I
doubt whether such a conclusion
37/...
37.
in this instance would accord with the legal convictions of the
community ("die regsoortuiging van die gemeenskap"). It is, however,
unnecessary
to decide this since in my view, even if one assumes that Ngili ought in law to
have acted to prevent the shooting and
was negligent in not attempting to do so,
the respondent has failed to prove that he would have successfully averted the
fatal consequences:
in other words, the causative element of the alleged delict
has not been proved. The enquiry in this regard is whether it can be
said that
on a balance of probabilities reasonable conduct on the part of Ngili would have
prevented the deceased's death. (
Minister of Police v Skosana
1977(1)
S.A. 31(A) 44 G - H; and cf
S v Van As en 'n Ander
1967(4) S.A. 594(A)
601A and 602D).
Turning again to the facts, the two constables, standing
next: to each other, were about 17 metres from the deceased and his companions.
One
38/...
38.
policeman and then the other produced his revolver. Shots were fired
rapidly, so much so that at the time of the shooting neither
Fika nor Spayire
could say how many there were in total. In the nature of things the assailants
would not have fired alternately
nor was there any reason for a deliberate pause
between shots. Each of the eye-witnesses was asked in court to demonstrate such
interval
by making more or less appropriate noises in the witness box. This was
an unrealistic exercise. Even if sober, they could not have
been expected in the
circumstances to have taken note of such detail and thereafter accurately to
corvey their recollection of this
feature of the case at a subsequent trial.
Nevertheless, based on these demonstrations, counsel estimated that there was
about half
a second between shots and the court was of the view that the
intervals as portrayed were shorter. Of course, in reality there would
not have
been the same
39/...
39. interval after each shot even if they were in fact successive.
But even if one were to place some reliance on this evidence -
in the absence of
any other - the time lapse between the first and fifth shot would be in the
order of two seconds. Counsel submitted
as a probability that it was the last
shot which found its mark. On the evidence this is a questionable deduction. But
even if this
is to be assumed in favour of the respondent, there is no basis for
the further assumption that Charlie was the first to shoot. At
the time he drew
his revolver and pointed in the direction of the group, Ngili had no reason to
conclude that Charlie would shoot
to kill rather than merely threaten them or
scare them with a shot not aimed at any of them. Had Ngili decided to take some
preventative
measure - after reacting to the first shot and deciding on a
suitably safe course of action - it cannot be said as a probability
that within
a second or so, that is,
40/...
40.
during the interval between Charlie's first shot and the fatal one, he
could have prevented the latter. During argument it was submitted
that in
deciding this question of causation the objective test required one to
substitute the hypothetical reasonable man or reasonable
policeman for Ngili,
who was a joint assailant, probably an inebriated one. I find it unnecessary to
comment on the correctness of
this approach, which in certain circumstances
might be a rather artificial one, since on such basis in this case the
conclusion must
be the same.
There is also no need to decide whether Ngili was negligent (though what has
been said on causation tends to prove that he was not)
or whether in the
circumstances the appellant could be held vicariously liable for any unlawful
and culpable omission on the part
of Ngili.
The respondent having failed to prove either
41/...
41 . of her two causes of action, the appeal must succeed with an
alteration of the costs order in the court a_
quo
. It follows that the
cross-appeal must automatically fail.
The following order is made:
1. The appeal is allowed with costs.
2. The cross-appeal is dismissed with
costs.
3.
The order
of the court a_
quo
is altered to one of absolution from the instance,
the plaintiff to pay the defendant's costs.
M E
KUMLEBEN
JUDGE OF APPEAL
CORBETT CJ) EKSTEEN JA)
HOWIE AJA) - Concur
KRIEGLER AJA)