Booysen v Minister of Safety and Security (CCT25/17) [2018] ZACC 18; 2018 (9) BCLR 1029 (CC); 2018 (6) SA 1 (CC); 2018 (2) SACR 607 (CC) (27 June 2018)

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[2018] ZACC 18
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Booysen v Minister of Safety and Security (CCT25/17) [2018] ZACC 18; 2018 (9) BCLR 1029 (CC); 2018 (6) SA 1 (CC); 2018 (2) SACR 607 (CC) (27 June 2018)

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Heads of arguments

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
25/17
In the matter
between:
ELSA
BOOYSEN
Applicant
and
MINISTER OF
SAFETY AND
SECURITY
Respondent
Neutral citation:
Booysen v Minister of Safety and Security
[2018] ZACC 18
Coram:
Zondo
DCJ, Cameron J, Froneman J, Jafta J, Kathree Setiloane AJ;
Kollapen AJ, Madlanga J, Mhlantla J, Theron J and Zondi
AJ
Judgments:
Mhlantla J: [1] to [65]
Zondo DCJ: [66] to
[123]
Heard on:
22
August 2017
Decided on:
27 June 2018
Summary:
Delict
— vicarious liability — deviation case — police
officer — domestic violence — police firearm
ORDER
On appeal from the
Supreme Court of Appeal (hearing an appeal from the Eastern Cape
Division of the High Court of South Africa,
Grahamstown), the
following order is made:
1. Leave to appeal is refused.
2. There is no order as to costs.
JUDGMENT
MHLANTLA J (Cameron
J, Froneman J, Jafta J, Kathree Setiloane AJ; Kollapen AJ,
Madlanga J, Theron J and Zondi AJ concurring)
Introduction
[1]
This is an application for leave to appeal against an order of
the Supreme Court of Appeal.  This case concerns

a tragic incident in which Ms Elsa Booysen (the applicant)
was shot and wounded by her boyfriend, Mr Johannes Mongo,
a
constable reservist (the deceased) in the employ of the South African
Police Service (SAPS).
[2]
The applicant seeks to hold the respondent, the Minister of
Safety and Security (Minister), vicariously liable for damages
arising
out of the incident.  She was successful in the High
Court, which held that vicarious liability should be imputed to the
Minister.
The Minister then appealed to the Supreme Court of
Appeal, which overturned the judgment of the High Court.  The
applicant
now applies to this Court for leave to appeal.
[3]
The issues for determination are:
(a) Should leave to appeal be granted?
(b) If so, should the Minister be held vicariously liable for the
damages suffered by Ms Booysen?
Factual
Background
[4]
The applicant and the deceased grew up together in Pearston,
in the Eastern Cape Province.  They eventually came to be

involved in an intimate relationship.
[5]
Before the High Court, the applicant testified that she had
known the deceased for many years and confirmed that they were
involved
in an intimate relationship and that she fell in love with a
private individual and not a policeman.  At the time they had

been in the relationship for less than a year.
[6]
On 22 March 2013, the deceased was on night shift duty.
He was dressed in his full police uniform and armed with a service

pistol.  The pistol had been issued to him by the shift
commander at the commencement of his shift.  He had been
assigned
crime prevention duties and was required to attend to
complaints by members of the public.
[7]
That night, the deceased was dropped off at the applicant’s
home by a marked police vehicle.  He had gone there to have

dinner, as was his routine when he was on duty on Friday and Saturday
nights.  After he had eaten, the police vehicle would
collect
him and he would continue with his shift duties.
[8]
Initially, there appeared to be nothing unusual about the
evening.  The deceased went to buy some soft drinks from a
nearby
shop.  On his return, he offered these to the applicant
and her family.  After supper, he and the applicant sat outside

together.  Suddenly, and without warning, the deceased drew his
service pistol and shot the applicant in the face.  He
then
turned the firearm on himself and committed suicide.  The last
words uttered by the deceased were to the effect that,
if he could
not have the applicant, then nobody else could.  The applicant
testified that she and the deceased had not argued
before the
incident and they did not have problems in their relationship.
[9]
As a consequence of the gunshot, the applicant sustained
injuries to her face.  She was admitted to Livingstone Hospital
in
Port Elizabeth where she received medical treatment.
Vicarious
liability in our courts
[10]
Before detailing the judgments of the lower courts in this
case, it is helpful to briefly set out the accepted common law test
for
vicarious liability in deviation cases.
[1]
[11]
The test to be applied when determining whether vicarious
liability should be imposed in these cases was first set out in
Rabie.
[2]
It was later expanded upon in
K,
[3]
and further explored in
F.
[4]
The test essentially consists of two questions: first, whether the
employee committed the wrongful acts solely for his or
her own
interests or those of the employer (the subjective question); and
second, if he or she was acting for his or her own interests,
whether
there was nevertheless a “sufficiently close link”
between the employee’s conduct and the business of
his
employment (the objective question).  The expansion of this test
in
K
and
F
is detailed below.
K v Minister of Safety and Security
[12]
In
K
, Ms K was left stranded at a petrol station
without transportation to her home and without any means of calling
her family after
a disagreement with her boyfriend.  Ms K was 20
years old at the time.  A policeman, Sergeant Nathaniel
Rammutle, came
to the petrol station driving an official SAPS
vehicle.  Sergeant Rammutle approached Ms K and asked her where
she was going.
She answered and said she wanted to go home.
He then offered to take her home and she accepted his offer.
She climbed
into the vehicle and found two other policemen, Sergeant
Ephraim Gabaatlholwe and Sergeant Edwin Nqandela, who were also both
in
uniform.  All of the police officers were on duty at the
time.
[5]
[13]
She fell asleep for a short while and when she woke up, the
car took a turn in the wrong direction.  A police jacket was
thrown
over her head and was held tightly so that she would not see
where the car was going.  The car stopped and she was forced to

the back seat of the car.  She was raped by the three police
officers in turn.  After raping her, they threw her to the

ground and drove away swiftly. Ms K sought damages against the
Minister.  Both the High Court and the Supreme Court of Appeal

held that the Minister could not be held to be vicariously liable for
the conduct of the police officers.  Ms K then appealed
to this
Court, arguing that the Supreme Court of Appeal erred
in its application of the common law test; and that
if it did not err
in its application of the test, that the test should be developed in
line with section 39(2) of the Constitution
as the outcome of her
case did not accord with the spirit, purport and objects of the
Constitution.
[14]
In a unanimous judgement, O’Regan J, in finding for Ms
K, held that a court must bear in mind constitutional norms when
deciding
whether the case before it is in principle one in which the
employer should be held liable.  To determine whether the
Minister
was vicariously liable, the Court applied the two-stage
common law test for liability set out in
Rabie,
while
simultaneously developing it to take into account constitutional
norms.
[15]
On the first leg of the test, O’Regan J held that the
three police officers had been acting in pursuit of their own
interests
when they raped Ms K.
[6]
It was in applying the second leg of the test that the Court
developed the common law.  It held that a court should
promote
constitutional values in an assessment of the presence of a
sufficient link.  It should do so through expressly articulating

the normative considerations at play in its reasoning for its
conclusion as to whether there is a sufficient connection between
the
wrongful act and the employment.
[7]
The Court held that the Minister was vicariously liable on the
basis of the presence of several factors that demonstrated
that the
conduct of the police officers was sufficiently close to their
employment.  These were:
(a) The police officers all bore a statutory duty to prevent crime
and protect members of the public.  That duty also rested
on
their employer and the police officers had been employed to perform
that obligation.
(b) The police officers had offered to assist Ms K and she had
accepted their offer.  She thus placed her trust in them.

In determining whether the Minister was liable, the Court had to keep
in mind the importance of the constitutional role entrusted
to the
police and of nurturing confidence and public trust in the police to
ensure that their role was successfully performed.
(c) The conduct of the police officers had constituted both a
commission and an omission: the brutal rape of Ms K and the failure

to protect her from harm respectively.
[8]
F v Minister of Safety and Security
[16]
In
F
, Ms F needed and was offered a lift home by Mr van
Wyk after a night out.  She was 13 years old at the time.
There were
two other passengers in the vehicle.  One of them was
known to her.  At the time, Mr van Wyk was employed as a police

officer by the SAPS and during that evening was on standby duty which
meant that he could have been called upon to attend to any

crime-related incident if the need arose.  He was in an unmarked
police vehicle to enable him to perform any police functions
that he
might have been required to perform whilst on standby duty.
[17]
After the other passengers had been dropped off at their
respective homes, Ms F moved to the front passenger seat, at Mr
van
Wyk’s request.  It was then that she saw a pile of
police dockets bearing the name and rank of Mr van Wyk.  When

she asked him why there were police dockets in his vehicle, he
replied that he was a private detective.  Ms F understood this

to mean that he was a police officer.  In her evidence, she said
that the fact that she believed Mr van Wyk to be a police
officer
played a role in allaying her fears, because she “trusted”
him as, at that stage, she thought he was a detective.
She
chose to repose her trust in a person of whom she would ordinarily
have been suspicious because she understood him to be a
police
officer.
[18]
While on their way to her home, Mr van Wyk unexpectedly turned
off the road and stopped in a dark place.  Ms F became
suspicious
and alighted from the vehicle, pretending that she needed
to relieve herself.  She then ran away and hid in an attempt to
escape.  After a short while, Mr van Wyk left.  Ms F then
came out of her hiding place and stood on the side of the road
and
tried to hitchhike.  A car pulled up to her, and it turned out
to be Mr van Wyk again.  Ms F reluctantly accepted
Mr van Wyk’s
offer for a lift due to her desperate situation.  On their way
to her home, Mr van Wyk pulled off the road
again and was able to
prevent her from fleeing this time around.  He then assaulted
and raped her.  Thereafter, he took
her to her home and
threatened to harm or even kill her should she tell anyone about the
incident.
[9]
[19]
Ms F launched proceedings against the Minister in the High
Court, where she was successful.  The High Court’s
decision
was then overturned by the Supreme Court of Appeal, and Ms F
appealed to this Court.
[20]
The decision in
F
affirmed that the application of the
test requires normative factors to be taken into account.  The
Court held that, as in
K,
the relevant interrelated normative
factors at play in
F
were—
“
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 policeman’s
commission of rape
and omission to protect the applicant; and the existence or otherwise
of an intimate link between the policeman’s
conduct and his
employment.
”
[10]
Mogoeng J held that
all of these elements complement one another in determining the
state’s vicarious liability.
[21]
The Constitutional Court in this case held that the facts gave
rise to a sufficiently close link between Mr van Wyk’s
employment
and the assault and rape of Ms F.  This link was
founded on the grounds that a police vehicle facilitated the
commission
of the rape; that Ms F placed her trust in him because he
was a police official; and that the state has a constitutional
obligation
to protect the public against crime.  Consequently,
the Minister was held vicariously liable for the damages suffered by
Ms
F as a result of the rape and assault.
[11]
Litigation
history
High Court
[22]
Reverting to the matter before us, in August 2013, the
applicant instituted action for damages against the Minister of
Safety
and Security in the Eastern Cape Division of the High Court of
South Africa, Grahamstown (High Court).
[12]
In her particulars of claim, the applicant pleaded that the deceased
had shot and wounded her.  She further alleged
that during the
incident, the deceased was a member of the SAPS and was acting within
the course and scope of his employment under
the South African Police
Service Act
[13]
(SAPS Act).
[23]
At the commencement of the trial, the Court was requested to
separate liability and quantum of damages, and determine liability
only.  In this regard, the Minister conceded all of the elements
of delictual liability in relation to the shooting of the
applicant.
However, he denied that he was vicariously liable for damages
suffered by the applicant as a result of the deceased’s

conduct.  The parties agreed that the shooting was not foreseen
by the applicant or by the SAPS.
[24]
The High Court accepted that this was a deviation case as the
wrongful act was done solely for the purposes of the employee.

In order to determine whether the employer should be held vicariously
liable, the Court applied the test laid down in
Rabie
, and
expanded in
K
and
F
.
[14]
[25]
The High Court held that some of the elements set out in
F
were present in this matter, while others were not.  It accepted
that the issue of trust did not arise in this case in the
same manner
as in
K
and
F
.  The High Court held that the
element of trust was not a prerequisite for vicarious liability but
was one of the factors
that may or may not be present.  In this
regard, the Judge relied on
Pehlani
,
[15]
in holding that a far more significant factor in the circumstances of
this case was the fact that the deceased used a police firearm
to
commit the delict.
[16]
Because the Minister had created a risk of harm by issuing the
firearm used by the perpetrator, he was responsible for any
harm that
ensued as a result of its misuse, and the rationale for the
imposition of vicarious liability would be served by recognising
this
risk and encouraging strict official controls over the issuance of
police firearms.  The other strong indicator for the
imposition
of vicarious liability was the fact that the deceased was dressed in
police uniform and had been dropped off for dinner
by a police
vehicle and would, but for the unfortunate events of that evening,
have been picked up by the vehicle so that he could
resume his
assigned duties.  The High Court thus concluded that the
Minister was vicariously liable for damages suffered by
the applicant
as a result of the deceased’s delictual conduct.
[17]
Supreme Court of Appeal
[26]
The Minister then sought to appeal the decision of the High
Court in the Supreme Court of Appeal.
[27]
The Supreme Court of Appeal reversed the decision of the High
Court. Makgoka AJA wrote for the majority.
[18]
He considered
K
and
F
and the two questions to be asked
in deviation cases in order for vicarious liability to be imposed.
[28]
In applying the test, the majority held that the answer to the
first question – whether the wrongful act was done solely for

the purpose of the employee – did not establish liability on
the part of the employer because the deceased acted for his
own
interests.  This conclusion was based on the following:
(a) The deceased was on a private visit to his lover’s home to
have supper.
(b) He was not there in his capacity as a police officer and he had
no official police function to perform.
(c) The visit was purely social during the time he was permitted to
be away from the police station for a meal break.
(d) The break had nothing to do with his employer any more than it
would have had anything to do with his employer’s business
if
he had been sitting having a meal in a café or purchasing a
take-away at a fast food restaurant.
[19]
[29]
With regard to the second question – whether a
sufficiently close link nonetheless exists – the majority held
that there
was not a sufficiently close link between the employee’s
act for his own interest and the purposes and business of the
employer.
[20]
Its conclusion was based on the following:
(a) When the shooting took place, the applicant and the deceased were
not relating to each other as police officer and citizen
but were
lovers in a domestic setting.
(b) The applicant confirmed during her testimony that she and the
deceased had no relationship problems and had not argued before
the
shooting.  The shooting was not foreseen either by the applicant
or SAPS.  There appeared to have been no sign at
all that the
deceased would have done what he did.
(c) The applicant did not repose trust in the deceased due to his
employment as a police reservist with the SAPS.
(d) The applicant did not fall in love with the deceased because he
was a police officer.
(e) There was no situation which called upon the deceased to act as a
police officer at the applicant’s home.
(f) There was no evidence that when the deceased was employed and
issued with a firearm, the management of the SAPS was aware or
should
have been aware that this created a material risk of harm to the
community.
[21]
[30]
The majority disagreed with the High Court’s reasoning
that the trust aspect was not an essential factor in this particular

case.  It held that in
K
and
F
, trust was central
to the finding that there was a sufficiently close connection between
the acts of the police officers and their
employment.  In the
present case, the parties were not relating to each other as police
officer and citizen but were interacting
as lovers in a domestic
setting.  The Supreme Court of Appeal therefore held that the
trust element, that the public ordinarily
reposes in the police, did
not arise at all.  In dealing with the facts that the deceased
used a service pistol, was dropped
off by a police vehicle and was
wearing police uniform, the majority held that all of those elements
were weakened by the absence
of trust between the parties.  It
held that since the deceased was not there in his official capacity
and was there to enjoy
dinner, no liability could be found on the
part of the Minister.
[22]
[31]
The majority also disagreed with the High Court’s
reliance on
Pehlani
and its conclusion that the Minister was
vicariously liable on the basis of the issuance of a firearm.
The Supreme Court of
Appeal held that such a conclusion would amount
to the imposition of strict liability.  This could not be done
in the absence
of evidence that the SAPS had failed to ensure that
the deceased was properly trained and disciplined or that the SAPS
should have
foreseen that the deceased would pose a danger to the
public.  There was no evidence that the deceased was a danger by
being
given a firearm.  Consequently, the Supreme Court of
Appeal overruled
Pehlani
to the extent that it imposed
vicarious liability merely on the basis that SAPS had issued a
firearm to a police officer who subsequently
committed a delict with
it.
[32]
The majority held that, since the deceased was not there in
his official capacity and the element of trust was absent, a
sufficient
link was not present and the Minister should not be held
vicariously liable.  The majority thus upheld the appeal and set
aside the decision of the High Court.
[33]
The minority judgment (written by Bosielo JA) held that the
test for vicarious liability should not be approached mechanically as

it involves relevant policy considerations.  The test must be
approached through the prism of the Constitution and its values
and
norms.  The judgment emphasised the fact that police officers
are not ordinary members of the public, but are appointed
after a
careful selection process followed by “intensive training in
professionalism, discipline, self-control and skills,
amongst others,
in the use of firearms”.
[23]
The minority highlighted the fact that the role of police officers is
to protect the public, and they are issued firearms
for the purpose
of executing this duty.  The judgment asserted that by arming
police officers with dangerous weapons, the
Minister creates
substantial risk that police officers may use them unlawfully. As a
result, the Minister has the responsibility
to ensure SAPS employees
are properly trained and disciplined, and all members of the
public are entitled to expect a professional and disciplined police

service.  If the police fail to execute their duties, the
responsibility for them as employees should fall on the Minister.
[34]
The minority judgment therefore afforded significant weight to
the factor of creation of risk in the assessment of the facts in this

case.  The minority held that the following factors were also
relevant to the determination of the question of vicarious liability:

the fact that the deceased was on duty, dressed in full SAPS uniform
and armed with a police firearm; the fact that he had been
assigned
crime prevention duties and had to attend to complaints by members of
the public; and the fact that he was driven to the
applicant’s
home by a colleague in a police vehicle and that same colleague would
have fetched him later had he not committed
suicide.
[35]
The minority disagreed with the majority’s finding that
the deceased’s visit to the applicant had no link to his
employment.
It held that going to the applicant’s home
for dinner did not absolve the deceased from discharging his
obligations as a
police officer.  Furthermore, since he was in
full police uniform, to any reasonable person he epitomised a police
officer
who was on duty in terms of his employment with the
Minister.  It concluded that the mere fact that the deceased was
on a
break to eat supper at the applicant’s home did not sever
the link to him being a police officer to such an extent that it

destroyed any basis of a possible imposition of vicarious liability
on the Minister.  This is because the applicant, like
all
individuals, was entitled to protection by members of the police
service.  The minority would have dismissed the appeal.
In this Court
Submissions by the applicant
[36]
The applicant submits that the distilled question for
determination before the court a quo was whether the facts
demonstrate that
there is a sufficient link between the deceased’s
shooting of the applicant and his employment as a police officer to
impose
vicarious liability on the Minister.
[37]
According to the applicant, the determination of this issue
requires a “delicate consideration” of the factual and
normative
factors present in this case.
[38]
She refers to the decision of the court a quo and its
consideration of the policy factors that underlie the doctrine of
vicarious
liability, and submits that the application of these
normative factors will vary depending on the facts of a particular
case.
The applicant submits that a relevant question here is
whether there was a creation of risk of harm on the part of the
Minister
by arming the deceased with the police firearm that he used
to intentionally harm her.  The applicant contends that the
court
a quo rightly held that the creation of risk was a significant
normative factor in this case.
[39]
In this regard, the applicant states that the court a quo
correctly relied upon
Feldman
, where it was held that an
employer has a duty to ensure that no harm ensues as a result of an
employee’s negligence in the
course of his employment.
[24]
The applicant contends that the court a quo properly identified the
normative consideration of the creation of risk to be
more
significant in the determination as to whether the Minister is
vicariously liable in this case, than the issue of whether
the
applicant subjectively trusted the deceased or was in a romantic
relationship with him.  Here, the Minister had issued
a firearm
to the deceased and therefore created a risk of harm.  The
firearm directly caused the harm in question and the
deceased had
access to the firearm due to his special role as a policeman.
[40]
The applicant submits that the High Court and the Supreme
Court of Appeal minority were justified in attributing vicarious
liability
on the basis of this and the other normative factors
applicable: the deceased was on official police duty and in uniform;
and the
employer is under a constitutional duty to protect citizens
of South Africa from both domestic and public violence.
The applicant contends that these factors give rise to a sufficiently
close connection between the unlawful conduct and the deceased’s

employment as required by
K
.  Imposing vicarious
liability is justified because the Minister should be held
responsible for any harm that ensues as a
result of creating a risk
of harm.  The applicant submits that the harm that she suffered
would not have occurred if the Minister
had not entrusted the
deceased with the possession of a lethal weapon.
[41]
The applicant argues that this result is supported by
Pehlani
and
Von Benecke
,
[25]
in which the Minister of Defence was held liable for a shooting that
took place during an armed robbery using a firearm assembled
from
stolen gun parts provided to the perpetrator by a member of the South
African National Defence Force (SANDF).  The applicant
submits
that leave to appeal should be granted and that the majority decision
of the Supreme Court of Appeal should be set aside.
Submissions by the respondent
[42]
According to the respondent, leave to appeal should be refused
as the applicant’s prospects of success on appeal are weak.

Alternatively, if leave is granted, the application should be
dismissed.
[43]
On the merits, the respondent submits that in both the cases
of
K
and
F
, a sufficiently close link between the
employees’ acts and the purposes and business of the employer
was established primarily
through the element of trust that the
victims had in members of the SAPS.  According to the
respondent, the element of trust
should therefore be accorded primacy
because the trust that the public is entitled to repose in the police
service justifies imposing
vicarious liability on the Minister.  It
constitutes the sufficiently close link between the deceased’s
conduct and
his employment.  A member of the public is exposed
to harm because he or she reasonably trusts a police officer.
He
or she may be harmed because the police officer exploits this
trust.  Thus, for liability to ensue, a member of the public
has
to repose their trust in a police officer who commits an offence
against the person who trusted them.  In this regard,
the
respondent relied on
P E
.
[26]
The respondent argues that the element of trust was more significant
in
F
, where the factual situation around the connection of the
police officer’s acts and his employment was even more tenuous
than that in
K
.  The respondent submits that it may be
concluded that absent Ms F’s trust in the police officer
involved in the case
of
F
, a sufficiently close link would not
have been established.
[44]
The respondent argues that this central element of trust is
not present in this case.  The applicant trusted the deceased
not
to harm her not because he was a police officer, but because they
were in a relationship.  The respondent avers that this is

confirmed by the applicant’s own evidence that the deceased had
gone to her home to have dinner as her boyfriend and not
as a police
officer.  Although the applicant’s trust in the deceased
enabled the crime, she did not form it based on
the fact that he was
a police officer as required for the imposition of vicarious
liability.  Thus, according to the respondent,
there is no
sufficiently close link for the purposes of imputing vicarious
liability to the Minister.  The respondent contends
that a
finding of vicarious liability in this case would effectively amount
to strict liability.
Leave to appeal
[45]
The first issue in this matter is the question of whether
leave to appeal should be granted.  To determine whether leave
to
appeal should be granted, the Court must establish that the case
engages this Court’s jurisdiction, and, if so, that it is
in
the interests of justice to grant leave to appeal.
[27]
[46]
The engagement of this Court’s jurisdiction is a
threshold requirement for the granting of leave to appeal.
[28]
If a case does not overcome this initial obstacle, it cannot be
entertained by this Court.  It is only if the jurisdictional

threshold has been met that this Court will proceed to assess whether
it is in the interests of justice for the Court to determine
the
matter.  The “interests of justice” enquiry includes
– but is not limited to – an assessment of
whether an
applicant has reasonable prospects of success, which may involve some
consideration of the application’s merits.
At the point
of the jurisdictional enquiry, however, this Court has held in
Gcaba
that “[j]urisdiction is determined on the basis of the
pleadings . . . and not the substantive merits of the case”.
[29]
I will now proceed to examine whether the issues as pleaded by the
applicant in this case confer jurisdiction on this Court.
Jurisdiction
[47]
The Constitution provides that this Court’s jurisdiction
is engaged in constitutional matters and matters that raise an
arguable
point of law of general public importance that ought to be
decided by this Court.
[30]
[48]
The first question is whether this appeal raises a
constitutional issue.  The applicant in her founding affidavit
argues that
the constitutional matter raised for consideration in
this application relates to the “application of all relevant
considerations,
and in particular the normative factors considered in
a constitutional setting of the Bill of Rights, in respect of
vicarious liability
on the part of the servants of the State”.
In support of this contention, the applicant argues that the
Supreme Court
of Appeal erred in its finding that there was no
sufficient link between the SAPS and the conduct of the deceased for
the purposes
of establishing vicarious liability.  In addition,
the applicant argues that she has reasonable prospects of success on
appeal,
and that the existence of conflicting judgments in respect of
the issues that this appeal raises is another compelling basis for

leave to appeal to be granted.  The applicant does not argue
that the test for the imposition of vicarious liability is at
odds
with our constitutional order, or that it requires development.
[49]
The respondent, on the other hand, submits that the reasoning
and conclusion reached in the majority judgment of the Supreme Court

of Appeal are sound and that the applicant does not have strong
prospects of success on appeal.
[50]
In the context of the applicant’s submission that the
constitutional issue in the present case is the application of the
test
developed in
K
and in
F
, it is important to
recognise that this Court does not ordinarily grant leave to appeal
on the basis that an applicant is dissatisfied
with a preceding
court’s application of an established legal test.
[31]
[51]
This was affirmed in
Mankayi
where this Court stated
that the Court has found that it is inappropriate for the concept of
what constitutes a “constitutional
issue” to be narrowly
construed, but that it has nonetheless “refused to entertain
appeals that seek to challenge only
factual findings or incorrect
application of the law by the lower courts”.
[32]
[52]
In
Mbatha
, Madlanga J (in a concurring judgment) found
that “what is in essence a factual issue” may not “morph
into a
constitutional issue through the simple facility of clothing
it in constitutional garb”.
[33]
[53]
This Court had to grapple with the issue of whether the
application of the test for vicarious liability amounted to a
constitutional
issue in
K
.  In doing so
,
O’Regan
J acknowledged the contention raised by the respondent that, to the
extent that the case concerned the mere
application of the
principles
of vicarious liability,
it did not amount to a
constitutional issue.
[34]
In this regard, O’Regan J quoted the decision of this
Court in
Phoebus Apollo
:
“It is not suggested that in determining the question of
vicarious liability the SCA applied any principle which is
inconsistent
with the Constitution. . . . The thrust of the argument
presented on behalf of the appellant was essentially that though the
SCA
has set the correct test, it had applied that test incorrectly ─
which is of course not ordinarily a constitutional issue.
This
Court’s jurisdiction is confined to constitutional matters and
issues connected with decisions on constitutional matters.
It
is not for it to agree or disagree with the manner in which the SCA
applied a constitutionally acceptable common-law test to
the facts of
the present case.”
[35]
[54]
O’Regan J found that
K
was distinguishable from
Phoebus Apollo
because, unlike in that case, the argument put
forward by the applicant in
K
was not purely that the Supreme
Court of Appeal incorrectly applied the established test for the
imposition of vicarious liability.
Counsel for the applicant
went further and contended that, if the Supreme Court of Appeal had
applied the common law rule correctly
in holding that the state was
not vicariously liable for the applicant’s damages, then the
rule should be developed to take
into account the applicant’s
constitutional rights and to provide a remedy to correspond to the
state’s alleged constitutional
duties.
[55]
A similar argument was made by the applicant in
F
.
There, the Court was also asked to develop the common law of
vicarious liability in the event that it found that the Supreme
Court
of Appeal had correctly applied the common law test to arrive at its
conclusion (which was largely based on the fact that
the police
official was on standby duty rather than active duty as was the case
in
K
).  For this reason, the Court’s jurisdiction
was not only grounded in the implication of certain constitutional
provisions,
but also in the enjoinment by the Constitution for courts
to “develop the common law, including the delictual principle
of
vicarious liability, in accordance with the spirit, purport and
objects of the Bill of Rights”.  These factors
cumulatively
led the Court to conclude that the matter raised
constitutional issues of importance.
[36]
[56]
In
Luiters
,
[37]
the applicant (the Minister) applied for leave to appeal against the
order of the Supreme Court of Appeal confirming the High Court’s

order that the Minister was vicariously liable for a delict committed
by an off-duty police officer.  In an appeal to this
Court, the
Minister sought to develop the test set out in
K
to confine
its application to on-duty police officers.  This Court held
that the matter engaged this Court’s jurisdiction
because the
Minister had raised a constitutional issue by seeking the development
of the common law of vicarious liability.  Despite
finding that
a constitutional matter was raised, this Court dismissed the
Minister’s application for leave to appeal on the
basis that it
lacked reasonable prospects of success.
[38]
[57]
That is not the case here.  In the present matter, the
applicant has brought a narrow case before this Court.  The
applicant’s
pleaded case is purely that the Supreme Court of
Appeal incorrectly assessed the facts in its application of the
F
and
K
test.  It is clear from the submissions before
us that the applicant does not contend that the Supreme Court of
Appeal and
the High Court held different views about the content of
the law, only that they applied accepted principles in different
ways.
[58]
The difference between the reasoning in the Supreme Court of
Appeal majority and the minority (and the High Court) judgments
ultimately
comes down to the weight that was attached to the
different normative considerations underpinning vicarious liability
based on
their assessment of the facts.  The Supreme Court of
Appeal minority and the High Court judgments attached substantial
weight
to the fact that the delict was committed using an official
firearm, and the policy consideration that – because the
Minister
creates risk by issuing firearms to police officers and
bears the responsibility of training police officers – he
should
be encouraged to take active steps to prevent employees from
causing harm to the broader public.  The Supreme Court of Appeal

majority judgment found on the assessment of the facts that
significant weight should be attached to the element of trust, since

the deceased did not gain access to the applicant due to her trust in
him as a police officer, but instead due to the fact that
they were
in a romantic relationship.
[59]
Unlike in
F
and
K
, the applicant has not averred
that the common law test requires further development or that the
bounds of the
F
and
K
test need to be further explored
due to contextual factors. As a result, this case purely concerns the
application of an accepted
legal test, which this Court has
repeatedly held is not a constitutional matter.
[39]
It follows that no constitutional issue has been raised in this
matter to clothe this Court with jurisdiction.
[60]
Furthermore, the applicant has not pleaded that this Court has
jurisdiction in this matter because it concerns an issue of general

public importance.  The applicant has simply argued that the
approach taken by the High Court and the Supreme Court of

Appeal minority judgment is correct.  The case is narrowly
framed and brought in the applicant’s own interest.
No
arguments have been put forward by the applicant to the effect that
this matter concerns an issue of national legal import.
Had the
applicant done so and had the respondent had an opportunity to answer
to an argument of this nature, it is possible that
the Court could
have entertained the matter, however the Court is bound by the
pleadings in this case.  In the result, the
threshold
requirement of jurisdiction has not been met.
[61]
Since there is no constitutional issue, it is not necessary
for this Court to assess the merits of the case.  In the result,

leave to appeal must be refused.
Conclusion
[62]
The two-stage enquiry for the imposition of vicarious
liability in deviation cases first set out in
Rabie
and as
developed in
K
and
F
is now an established legal test.
Vicarious liability matters involve a careful consideration and
weighing of the various
factors set out in
K
and
F
to
establish whether a sufficiently close link exists between an
employee’s conduct and the business of an employer.
K
and
F
expressly refer to
factors
as opposed to
requirements
and the weight to be accorded to each factor must
inevitably be determined on a case by case basis.  This
flexibility inherent
in the test will naturally lead to different
factors being accorded different weights by different courts, but it
is this very
flexibility that has imbued the common law of delict
with the values of the Constitution.  As the applicant has not
put forward
an argument that the established test should be developed
in order to afford greater weight to any one factor, this matter
purely
concerns the application of an established test.  The
threshold requirement of jurisdiction has not been met.
[63]
Consequently, the application for leave to appeal is refused.
This outcome should not be perceived to detract from this
Court’s
grave concern about the abuse of official firearms by
police officers, which has proven to be a pervasive issue in our
country.
Costs
[64]
The respondent makes no argument as to costs.  In the
result no order as to costs will be made.
Order
[65]
The following order is made:
1. Leave to appeal is refused.
2. There is no order as to costs.
ZONDO DCJ:
Introduction
[66]
I have had the opportunity of reading the judgment (first
judgment) prepared by my Colleague, Mhlantla J.  The first
judgment
concludes that this Court has no jurisdiction in respect of
this matter because this matter does not raise a constitutional issue

and, for that reason, it refuses leave to appeal.  The basis
that the first judgment advances for the conclusion that this
matter
does not raise any constitutional issue is that this Court is called
upon to simply apply what I call in this judgment the
Rabie
[40]
test for vicarious liability or to decide whether the
Rabie
test was correctly applied by the Supreme Court of Appeal.  The
first judgment proceeds to hold that the application of an

established legal test does not raise a constitutional issue.
For the reasons that I set out shortly, I am unable to agree
with the
first judgment that this matter does not raise a constitutional
issue, that this Court has no jurisdiction and that leave
to appeal
should be refused.  In my view, this matter does raise a
constitutional issue and this Court has jurisdiction.
Indeed,
in my view, leave to appeal should also be granted.  However,
before I set out my reasons for my views in this regard,
let me
briefly set out the background.
Background
[67]
Although the first judgment has already set out the facts of
this matter, they can be stated briefly here as well in order to
ensure
a proper understanding of this judgment.  Mr Mongo and Ms
Elsa Booysen, the applicant, had a romantic relationship.  He

was a police reservist.  During the evening of 22 March 2013
Mr Mongo was on duty as a police officer.  He decided
to
visit the applicant and have dinner with her during his meal break.
Mr Mongo was wearing a police uniform and carrying
a service pistol.
He was dropped at the applicant’s place of residence by a
marked police vehicle on the understanding
that he would be picked up
by the same vehicle at the end of the dinner or when he was ready to
return to work.
[68]
According to the applicant, Mr Mongo and the applicant spent
time together and they did not have any quarrel.  However,
according
to her, out of the blue Mr Mongo pulled out his
service pistol and said that, if he could not have her, nobody
could.
He then shot her, turned the pistol on himself and
committed suicide.  The applicant was injured but, fortunately,
she survived.
High Court and
Supreme Court of Appeal
[69]
The applicant sued the Minister of Safety and Security for
damages arising out of the incident on the basis that he was
vicariously
liable for Mr Mongo’s wrongful conduct.  The
issue between the parties was whether the Minister was vicariously
liable
for Mr Mongo’s wrongful conduct in shooting the
applicant.  The High Court concluded that the Minister was
vicariously
liable.  On appeal, the Supreme Court of Appeal was
divided 4:1.  The majority held that the Minister was not
vicariously
liable.  The minority held that he was.  The
Supreme Court of Appeal upheld the Minister’s appeal and set
aside
the order of the High Court.
In this Court
Jurisdiction
[70]
The applicant has now applied to this Court for leave to
appeal against the decision of the Supreme Court of Appeal.  As
I
have said, the first judgment concludes that the application for
leave to appeal should be dismissed.  The basis it advances
is
that this Court has no jurisdiction to entertain this matter.
For the reasons that follow, in my view there is a constitutional

issue in this matter and this Court has jurisdiction.
[71]
When Mr Mongo shot and injured the applicant for no valid
reason on the evening in question, he violated or infringed the
applicant’s
right to freedom and security of the person
including the right to be free from all forms of violence which is
entrenched in section
12(1)(c) of the Constitution.  Section 12(1)(c)
reads:
“Everyone has the right to freedom and security of the person,
which includes the right—
(c) to be free from all forms of violence from either public or
private sources.”
[72]
In
K
[41]
this Court had this to say about Ms K’s right to security of
the person, her right to dignity, privacy and substantive equality:

“The question of the protection of Ms K’s rights to
security of the person, dignity, privacy and substantive equality
are of profound constitutional importance”.
[42]
The same sentiment applies to the applicant’s right to
security of the person including the right to be free from all
forms
of violence and the right to human dignity in this case.
[73]
If the applicant had sued Mr Mongo for, inter alia, an order
declaring that he had violated her right under section 12(1)(c) and

the matter had come to this Court after the High Court and the
Supreme Court of Appeal, nobody could have taken the view that this

Court had no jurisdiction to adjudicate an appeal in respect of a
claim based on a violation of section 12(1)(c).  Indeed,
in
Mashongwa
[43]
Mr Mashongwa was injured when he was thrown out of a moving
train operated by the Passenger Rail Agency of South Africa (PRASA).

He sued PRASA for damages arising out of the incident.  This
Court held that it had jurisdiction to entertain that matter
on the
basis that Mr Mashongwa’s claim was based on an alleged breach
of the rights in sections 7(2) and 12(1)(c) of the
Constitution.
Section 7(2) places an obligation on, among others, the executive,
under which PRASA fell, to respect, promote,
protect and fulfil the
rights entrenched in the Bill of Rights.
[74]
In
Mashongwa
this Court unanimously said through
Mogoeng CJ:
“Although it may not look like the outcome turns on the meaning
or vindication of any constitutional provision or right,
[sections]
7(2) and 12(1)(c) of the Constitution are the pillars on which the
superstructure of this case rests.  Mr Mashongwa’s
claim
owes its origin largely to the obligations imposed on PRASA, an organ
of state, by these provisions.  In addition, an
enquiry into
wrongfulness “focuses on the conduct and goes to whether the
policy and legal convictions of the community,
constitutionally
understood, regard it as acceptable’.  On these bases this
Court does have jurisdiction in terms of
section 167(3)(b)(i) of the
Constitution.”
[44]
[75]
In the present case it can be said that the applicant’s
claim owes its origin largely to the constitutional and statutory
obligations that Mr Mongo and the Minister of Safety and Security had
towards the applicant and to protect her and to prevent harm
to her,
to respect, promote, protect and fulfil her fundamental right in
section 12(1)(c) of the Constitution to be free from all
forms of
violence.  When a police officer is in possession of a service
firearm issued to him or her for use in the course
of his or her
duties, he has a constitutional and statutory obligation not to use
that firearm in any circumstances in which its
use is not authorised
by law.  In other words, he or she may not use it unlawfully.
If he used it unlawfully, he or
she acts in breach of that
constitutional and statutory obligation.  In this case the
applicant’s case is in effect
that in shooting and injuring the
applicant, Mr Mongo acted in breach of that constitutional and
statutory obligation.  That
is a constitutional issue.
[76]
Both sections 7(2) and 12(1)(c) apply to the present matter.
Mr Mongo and the Minister were obliged to respect, promote, protect

and fulfil the applicant’s right under section 12(1)(c) to be
free from all forms of violence.  All parties accept that
the
matter must be decided on the basis that Mr Mongo’s conduct was
wrongful and he infringed the applicant’s rights.
What
this Court is asked to do is to grant leave to appeal so as to decide
whether the Minister is vicariously liable for Mr Mongo’s

wrongful conduct.
[77]
It is accepted by all concerned that the test to be used to
determine vicarious liability is the
Rabie
test
[45]
as developed in this Court’s judgment in
K.
That
test has two legs.  In this case the first leg of the test has
been satisfied.  What remains to determine
is whether the second
leg of the test as developed in
K
has been satisfied.
The second leg is represented by the question whether, bearing in
mind the values the Constitution seeks
to promote, it can be said
that there was a close connection between Mr Mongo’s conduct
and the purposes and business of
the Minister.  The reference to
“bearing in mind the values the Constitution seeks to promote”
was made part of
the
Rabie
test by this Court in
K
.
[46]
Accordingly, the
Rabie
test, as developed in
K,
must
be applied to determine vicarious liability
.
[78]
Through O’Regan J this Court said in
K
:
“The fact that the Court is concerned with a different aspect
of the law of delict, the
one pertaining to vicarious liability
does not mean that questions of constitutional rights cannot arise
.
The obligations imposed by sections 8(1) and 39(2) of the
Constitution are not applicable only to the criterion of wrongfulness

in the law of delict.
In considering the common law
principles of vicarious liability, and the question of whether that
law needs to be developed in that
area, the normative influence of
the Constitution must be considered.
”
[47]
[79]
This Court went on to say in paragraphs 22 and 23 of its
judgment in
K
:
“[22]
Despite the policy-laden character of vicarious
liability
, our courts have often asserted, though not without
exception, that the common-law principles of vicarious liability are
not to
be confused with the reasons for them, and
that their
application remains a matter of fact.
If
one looks at the principle of vicarious liability through the
prism of section 39(2) of the Constitution, one realises that
characterising the application of the common-law principles of
vicarious
liability as a matter of fact untrammelled by any
considerations of law or normative principle cannot be correct.  Such
an
approach appears to be seeking to sterilise the common-law test
for vicarious liability and purge it of any normative or social
or
economic considerations.  Given the clear policy basis of the
rule as well as the fact that it is a rule developed and
applied by
the courts themselves, such an approach cannot be sustained under our
new constitutional order
.  This is not to say that there are
no circumstances where rules may be applied without consideration of
their normative content
or social impact.  Such circumstances
may exist.
What is clear, however, is that as a matter of
law and social regulation, the principles of vicarious liability are
principles which
are imbued with social policy and normative
content.  Their application will always be difficult and will
require what may
be troublesome lines to be drawn by courts applying
them
.
[23]
Denying that the principles bear such normative implications
will only bedevil the exercise by rendering inarticulate premises
that
in a democracy committed to openness, responsiveness and
accountability should be articulated.  To this extent, at
least,
therefore, the principles of vicarious liability and their
application needs to be developed to accord more fully with the
spirit,
purport and objects of the Constitution.  This
conclusion should not be misunderstood to mean anything more than
that the
existing principles of common-law vicarious liability must
be understood and applied within the normative framework of our
Constitution,
and the social and economic purposes which they seek to
pursue.  Nor does this conclusion mean that an employer will be
saddled
with damages simply because injuries might be horrendous.
Rather, it implies that the courts, bearing in mind the values
the Constitution seeks to promote, will decide whether the case
before it is of the kind which in principle should render the
employer
liable
.”
[48]
[80]
In my view, the policy features of vicarious liability relate
to public policy.  It will be noticed from the first sentence
of
paragraph 22 in
K
that this Court described vicarious
liability as having a “policy-laden character”.
Attention must also be drawn
to the second last sentence of paragraph
22 in
K
which in part says that “the principles of
vicarious liability are principles which are imbued with social
policy and normative
content”.  Further attention should
be drawn to the point made in the last sentence of paragraph 23 in
K
.  That point is that this Court’s conclusion in
the second sentence of paragraph 23 means that, in applying the
second
leg of the
Rabie
test for vicarious liability, “the
courts, bearing in mind the values the Constitution seeks to promote,
will decide whether
the case before it is of the kind which in
principle should render the employer liable”.
[81]
In
K
this Court held that the three policemen who raped
Ms K had a simultaneous constitutional and legal obligation towards
Ms K of protecting
her and of preventing harm to her.  It called
this a simultaneous omission and commission.  It went on to say
that the
simultaneous omission and commission is relevant to the
determination of vicarious liability.  It articulated this in
these
terms:
“The question of the simultaneous omission and commission may
be relevant to wrongfulness in a particular case, but it will
also be
relevant to determining the question of vicarious liability.  In
particular, it will be relevant to answering the
second question set
in
Rabie
: was there a sufficiently close connection between
that delict and the purposes and business of the employer?”
[49]
In this passage this
Court held in
K
that, in answering the second question in the
Rabie
test, which is what the present case before us is about,
the simultaneous constitutional and statutory commission and omission
obligations
which the wrongdoer and the Minister owed the victim are
relevant to determining vicarious liability.  That means that
the
determination of vicarious liability, at least in so far as it
involves the consideration of the constitutional and statutory
simultaneous
omission and commission obligations of the perpetrator
and the employer towards the victim, raises a constitutional issue.
[82]
As will be seen below, in the present case Mr Mongo’s
conduct constituted a breach of his and the Minister’s
constitutional
and statutory simultaneous omission and commission
obligations referred to in this Court’s judgment in
K.
[50]
The commission lay in Mr Mongo’s conduct in shooting and
injuring the applicant.  The simultaneous omission lay
in his
failure to protect the applicant from harm when he had a general duty
to do so.
[83]
In
Minister of Safety and Security v Luiters
[51]
Langa CJ, writing for a unanimous Court, had this to say about what
this Court’s judgment in
K
said concerning the
determination of vicarious liability:
“This Court may decide only constitutional matters and issues
connected with decisions on constitutional matters.  In
K
this Court explicitly recognised that questions relating to vicarious
liability are not always purely questions
of fact but that policy
and constitutional considerations are inherent in all questions of
vicarious liability.  Vicarious
liability, it was stated,
requires the
‘
court,
bearing in mind the values the Constitution seeks to promote, [to]
decide whether the case before it is of the kind which
in principle
should render the employer liable.’
The point was made that generally people should not be held liable
for delicts they did not commit and the policy considerations
that
convince a court to depart from that principle prevent vicarious
liability from ever being described as a purely factual issue.
It
is necessarily a mixed determination of policy and fact.  The
Court however made a distinction between the first, subjective
leg
and the second, objective leg of the test established and held that
the policy considerations only become relevant in the second,

objective leg of the test.  The first, subjective leg remains a
purely factual inquiry
”.
[52]
[84]
It seems to me that the policy and constitutional
considerations to which this Court referred in
Luiters
and
K
include the values of the Constitution.  It is clear from the
passage quoted above that this Court has said that to determine

whether someone is vicariously liable for a delict committed by
another, the values of the Constitution must be used to decide

whether the case before the Court is of the kind which in principle
should render the employer liable.  In
Luiters
, this
Court held that the policy considerations are relevant only in the
second leg of the
Rabie
test.  That is on whether there
was a close connection between the delict and the purposes and
business of the employer.
[85]
In
F
this Court also said:
“Mr van Wyk did not rape Ms F in the furtherance of the
constitutional mandate of his employer.  He was not, and could

not have been, ordered by his employer to do so.  He acted in
pursuit of his own selfish interests.  Accordingly, the
first
leg of the
K
test, which is subjective, does not
establish state liability here.  What remains to be considered
is whether the requirements
of the second leg of the test are met.
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 policeman’s
commission of rape
and omission to protect the victim; and the existence or otherwise of
an intimate link between the policeman’s
conduct and his
employment.  All these elements complement one another in
determining the State’s vicarious liability.
”
[53]
[86]
From the above passage I highlight that the last sentence is
to the effect that all the elements or factors referred to in that
passage, which include the constitutional obligations to protect the
public and the role of the simultaneous omission and commission,

“complement one another in determining the State’s
vicarious liability”.  It is clear from this passage
that
the determination of the vicarious liability of the Minister of
Safety and Security for the wrongful conduct of a police officer

involves, in so far as it relates to the second leg of the
Rabie
test, considering whether the state’s constitutional
obligation to protect the public has been breached.  This alone
is sufficient to justify the conclusion that, where a court is
required to determine the vicarious liability of the Minister of

Safety and Security for the wrongful conduct of a police officer with
reference to the second leg of the
Rabie
test, a
constitutional issue is raised.
[87]
This Court’s decision in
K
that the Minister was
vicariously liable for the wrongful conduct of the three policemen in
raping Ms K rested on the second leg
of the
Rabie
test.
That is on the existence or otherwise of a sufficiently close
connection between the wrongful conduct of the policemen
and their
employment.  This Court relied on three inter-related factors to
reach the conclusion that there was such a connection
in
K
.
This Court held:
“In my view, these three inter-related factors make it plain
that viewed against the background of our Constitution, and,
in
particular, the constitutional rights of the applicant and the
constitutional obligation of the respondent, the connection between

the conduct of the policemen and their employment was sufficiently
close to render the respondent liable.”
[54]
[88]
Seeing that, in the present case, whether or not the Minister
must be held vicariously liable is going to depend on the answer to

the second question in the
Rabie
test, are we not called upon
to ask the same question that this Court asked and answered in
K
?
That is the question whether there are no factors in the present case
such as those referred to in
K
or similar factors which “make
it plain that, viewed against the background of our Constitution,
and, in particular, the
constitutional rights of the applicant and
the constitutional obligations of the respondent, the connection
between the conduct
of the policemen and their employment was
sufficiently close to render the respondent liable”.
[89]
Of course, that is the question we are called upon to answer.
If the answer is in the affirmative, as was the case in
K
, the
Minister will be vicariously liable.  If the answer is in the
negative, the Minister will not be vicariously liable.
Is that
question a constitutional issue?  Of course, it is.  This
is so in part because this Court says we must view
those factors
against the background of our Constitution, and, in particular, the
constitutional rights of the applicant and the
constitutional
obligations of the respondent which is the Minister.
[90]
In
F
this Court, through Mogoeng J, said:
“As O’Regan J stated in
K
, the second question [of
the
Rabie
test] ‘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 policeman’s commission of rape and
omission to protect the victim; and the existence
or otherwise of an
intimate link between the policeman’s conduct and his
employment.  All these elements contemplate
one another in
determining the state’s vicarious liability in this matter.
The state has a general duty to protect members of the public from
violations of their constitutional rights.  In grappling
with
the question of the state’s vicarious liability, the
constitutional obligations to prevent crime and protect members
of
the public, particularly the vulnerable, must enjoy some prominence.
These obligations, as well as the constitutional
rights of Ms F, are
the prism through which this enquiry should be conducted.”
[55]
[91]
If it is accepted, as I think it must be, that in the present
matter this Court is called upon to determine whether the second leg

of the
Rabie
test, as developed in
K
, is satisfied,
then it must also be accepted that the enquiry that this Court is
required to conduct is or includes the enquiry
to which this Court
referred in the last sentence of the passage quoted in the preceding
paragraph.  If that it accepted,
it is difficult to understand
the proposition that such an enquiry does not raise a constitutional
issue.  In my view, it
clearly does raise a constitutional
issue.
Leave to appeal
[92]
This Court grants leave to appeal if it is in the interests of
justice to grant leave.  An important factor, though not
decisive,
in this regard is whether there are reasonable prospects of
success in the appeal.  There is much uncertainty about how the

second leg of the
Rabie
test must be applied.  Only this
Court may bring certainty as to what the correct application is of
the
Rabie
test after it was developed by this Court in
K
.
[93]
A principle or a strong guideline has been established by this
Court that, when there are different judicial opinions that have been

expressed in a lower court or in lower courts in a matter in respect
of which leave to appeal is sought, that means that there
are,
prima
facie
, reasonable prospects of success.  In
NEHAWU
[56]
this Court said:
“That said, an important factor in considering the prospects of
success in this application is the fact that members of the
LAC and
the Labour Court are divided on the proper construction of section
197.  This factor alone suggests, at least
prima facie
,
that there are prospects of success.”
[57]
Later on in the same
paragraph this Court said: “Nevertheless, given the clear
division amongst the labour judges, it is desirable
for this court to
consider this issue.”
[58]
[94]
In
Loureiro
there had been a majority and a minority
judgment in the Supreme Court of Appeal and this Court said that
the substantial
differences in the majority and minority judgments in
that Court “provid[ed] a further reason for its being in the
interests
of justice to address the issues”.
[59]
In the present case the High Court found for the applicant on
vicarious liability and in the Supreme Court of Appeal there
was a
split.  In this Court there is a split as well.  In line
with the approach of this Court in cases such as
NEHAWU
we
should hold that there are reasonable prospects of success for the
applicant in this matter.
[95]
In fact out of
K, F
and this matter in which vicarious
liability had to be determined by this Court in the past few years,
it was only in
K
that there was a unanimous judgment in this
Court.
F
had a majority judgment and a minority
judgment.  In
F
there was a split in the Supreme Court of
Appeal.  This Court’s judgment in
K
refers to a
number of cases including those in foreign jurisdictions from which
one can see that the determination of vicarious
liability very often
results in divisions in judicial opinions.  This shows that very
often judicial unanimity is a rarity
in cases of vicarious
liability.  In the
Rabie
case itself there was a split in
the Appellate Division when the
Rabie
test was adopted.
[96]
In the circumstances it is in the interests of justice that
leave to appeal be granted.
The appeal
[97]
It is accepted that to determine whether the Minister is
vicariously liable for Mr Mongo’s wrongful conduct, the test to
be
applied is the
Rabie
test.  In
Rabie
the test
was formulated in these terms:
“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 the servant does so fall, some reference

is to be made to the servant's intention. . . .  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.”
[60]
It is accepted that
the applicant’s case does not meet the first leg of the test.
Whether or not the Minister is vicariously
liable will depend upon
whether the second leg of that test is satisfied.  The second
leg of the
Rabie
test is covered in the last two sentences of
this passage.
[98]
It is true that in both
F
and
K
the feature of
trust was present although more so in
K
than in
F
.
I say more in
K
than in
F
because in
F
, when Ms
F alighted from the vehicle driven by Mr van Wyk, she did so because
she did not trust him anymore.  When, out of
desperation, she
entered the same car again, although she still must have had some
trust in Mr van Wyk, it must have diminished
considerably.  It
is important to discuss the judgments of this Court in
K
and
F
.
The judgment of
this Court in K
[99]
Ms K
,
a young woman, was stranded in the early hours of
the morning after she had been at a club with a boyfriend who later
refused to
take her home.  She went to a petrol station to look
for a telephone booth to call home but found that outgoing calls
could
not be made from the telephone in the petrol station.
While she was not sure what to do, a marked police vehicle arrived at

the petrol station.  A police officer in uniform alighted from
the police vehicle.  After hearing Ms K’s story,
the
police officer offered Ms K a lift home.  Ms K accepted the
offer and jumped into the police vehicle.   There
were two
other police officers in the police vehicle.  They were also in
uniform.  The three police officers drove off
with Ms K.
After some time, the vehicle drove in a wrong direction and Ms K
protested.  The three police officers told
her to “be
quiet” and stopped somewhere and raped her.  They left her
there and drove off.  The police officers
were subsequently
convicted of rape and kidnapping and sentenced to life imprisonment
for the rape.  Ms K subsequently sued
the Minister on the basis
that he was vicariously liable for the wrongful conduct of the police
officers who had raped her.
[61]
[100]
In
K
this Court had this to say about the obligations
of the police officers involved in that case towards Ms K:
“The question of the protection of Ms K's rights to security of
the person, dignity, privacy and substantive equality are
of profound
constitutional importance.
In addition, it is clear and it was
conceded by the respondent that it was part of the three policemen's
work to ensure the safety
and security of all South Africans and to
prevent crime.
These obligations arise from the
Constitution and are affirmed by the Police Act.  In the light
of these obligations,
the court said in
Carmichele
:
. . .
‘The
police is one of the primary agencies of the State responsible for
the protection of the public in general and women
and children in
particular against the invasion of their fundamental rights by
perpetrators of violent crime.’”
[62]
[101]
The effect of the first judgment is that, when a policeman who
is on duty and in uniform uses his service firearm to shoot his wife

or his girlfriend at home, the doors of this court are shut to the
woman concerned if she seeks refuge and relief in this the highest

court because the lower courts have wrongly applied the vicarious
liability test since this court will say there is nothing
constitutional
about the injustice she may have suffered at the hands
of the man.  This means that the wife or girlfriend would be
unlikely
to recover any damages from the Minister for that wrongful
conduct by the police officer.  Whether or not the Minister may

be held vicariously liable in any particular case will depend on the
circumstances of each case and the presence or absence of
the trust
element is not decisive.  The Minister may be held vicariously
liable even when the trust element does not feature
provided that a
consideration of all other relevant factors leads to the conclusion
that there is a close connection between the
wrongful conduct of the
police officer and his employment as a police officer.  That
connection may be established on the
strength of other factors of the
case such as how the police officer’s employment as a police
officer facilitated the commission
of the wrongful conduct.
What must also be made clear is that a police officer’s
obligation to protect the people also
applies to members of his or
her family and loved ones, particularly when he is on duty.  A
police officer’s obligation
to protect the people of South
Africa and to prevent crime covers the family members of the police
officer at home as well.
[102]
In
K
this Court relied, among others, on the factor of
simultaneous omission and commission in determining whether the
Minister was vicariously
liable.  This Court said in this
regard:
“An employee can at the same time be committing a delict for
his or her own purposes, and neglecting to perform his or her
duties
as an employee and this has been recognised by our courts, at the
very least by Watermeyer CJ in
Feldman
.  In this case it
is clear that the delict for which the applicant seeks to hold the
respondent liable is the rape by the
three policemen.  That rape
was clearly a deviation from their duties.  However, when
committing the rape, the three
policemen were simultaneously omitting
to perform their duties as policemen.”
[63]
[103]
Later, this Court said:
“The question of the simultaneous omission and commission may
be relevant to wrongfulness in a particular case, but it will
also be
relevant to determining the question of vicarious liability.  In
particular, it will be relevant to answering the
second question set
in
Rabie
: was there a sufficiently close connection between
that delict and the purposes and business of the employer?”
[64]
In this case, too,
the question of simultaneous omission and commission arises.  If
the rape of Ms K by the three policemen
was both an omission and a
commission, the shooting of the applicant by Mr Mongo in this case
was also both an omission and a commission.
The presence of
this factor points towards the existence of a close connection
between Mr Mongo’s wrongful conduct and the
“business”
of the Minister.
[104]
In regard to the question whether in
K
the three
policemen’s conduct was sufficiently close to their employer’s
business to render the Minister vicariously
liable, this Court said:
“The next question that arises is whether, albeit that the
policemen were pursuing their own purposes when they raped the

applicant,
their conduct was sufficiently close to their
employer’s business to render the respondent liable.  In
this regard, there
are several important facts which point to the
closeness of that connection.  First, the policemen all bore a
statutory and
constitutional duty to prevent crime and protect the
members of the public.  That duty is a duty which also rests on
their
employer and they were employed by their employer to perform
that obligation.  Secondly, in addition to the general duty to

protect the public,
the police here had offered to assist the
applicant and she had accepted their offer
.  In so doing,
she placed her trust in the policemen although she did not know them
personally.  One of the purposes
of wearing uniforms is to make
police officers more identifiable to members of the public who find
themselves in need of assistance.
[65]
[105]
After the above paragraph this Court continued:
Our Constitution mandates members of the police to protect members of
the community and to prevent crime.  It is an important
mandate
which should quite legitimately and reasonably result in the trust of
the police by members of the community.  Where
such trust is
established, the achievement of the tasks of the police will be
facilitated.  In determining whether the Minister
is liable in
these circumstances, courts must take account of the importance of
the constitutional role entrusted to the police
and the importance of
nurturing the confidence and trust of the community in the police in
order to ensure that their role is successfully
performed.  In
this case, and viewed objectively, it was reasonable for the
applicant to place her trust in the policemen
who were in uniform and
offered to assist her.
Thirdly, the conduct of the policemen which caused harm
constituted a simultaneous commission and omission
.  The
commission lay in their brutal rape of the applicant.  Their
simultaneous omission lay in their failing while on
duty to protect
her from harm, something which they bore a general duty to do, and a
special duty on the facts of this case.
In my view, these
three inter-related factors make it plain that viewed against the
background of our Constitution, and, in particular,
the
constitutional rights of the applicant and the constitutional
obligations of the respondent, the connection between the conduct
of
the policemen and their employment was sufficiently close to render
the respondent liable.”
[66]
[106]
Paragraphs 51 to 53 of the judgment of this Court in
K
show that this Court did not make its decision on the connection
between the three policemen’s wrongful conduct and the
Minister’s “business” solely on the basis of the
element of trust in the police.  This Court went on to specify

the three factors which pointed to the closeness of the connection
between the wrongful act and the police officers’ employment.

The three factors were the following:
(a) “The policemen all bore a statutory and constitutional duty
to prevent crime and protect members of the public.
That duty
is a duty which also rests on their employer and they were employed
by their employer to perform that obligation.”
[67]
(b) “. . . .in addition to the general duty to protect the
public, the police had offered to assist the applicant and she
had
accepted their offer.  In so doing she placed her trust in the
policemen although she did not know them personally.
One of the
purposes of wearing uniforms is to make police officers more
identifiable to members of the public who find themselves
in need of
assistance.”
[68]
(c) “. . . .the conduct of the policemen which caused harm
constituted a simultaneous commission and omission.  The

commission lay in their brutal rape of the applicant.  Their
simultaneous omission lay in their failing, while on duty, to
protect
her from harm, something which they bore a general duty to do, and a
special duty on the facts of this case.”
[69]
[107]
Referring to the above three factors, O’Regan J said on
behalf of a unanimous Court in
K
:
“In my view,
these three interrelated factors make it plain
that viewed against the background of our Constitution, and in
particular, the constitutional
rights of the applicant and the
constitutional obligations of the respondent, the connection between
the conduct of the policemen
and their employment was sufficiently
close to render the respondent liable.
”
[70]
This passage shows,
quite clearly, that in
K
the question of whether there was a
close connection between the wrongful conduct of the policemen and
their employment was not
decided solely on the basis of whether the
feature of trust was present.  Trust was but one of the factors
that the Court
took into account together with the two other factors
referred to above.  Two of the three factors on which this Court
relied
to reach the conclusion in
K
that there was a close
connection between the wrongful conduct of the three policemen and
their employment are also present in
this case.  Those are that
Mr Mongo bore a statutory and constitutional duty to (a) prevent
crime and protect members of the
public and (b) the simultaneous
commission and omission.
[108]
In my view, the police statutory and constitutional duty to
prevent crime and protect members of the public does not exclude
members
of a police officer’s family or friends or romantic
partner.  A member of a police officer’s family is owed a
duty of protection by a police officer as is any member of the
public.  The fact that the police officer is a member of his
or
her family or is a friend or romantic partner does not mean that he
or she is owed less or no protection by the police officer.
As
long as a member of the public is owed a duty of protection by a
police officer in a particular case, a family member, friend
or
romantic partner of the police officer in the same situation as a
member of the public is equally owed a duty by that police
officer.
[109]
In
K
it was conceded by Counsel for the Minister that,
had Ms K been detained on reasonable suspicion that she had committed
a crime
and was then raped by a police officer while in police
custody, the Minister would have been vicariously liable.  This
Court
had this to say in regard to this concession:
“To conclude that, on the facts of this case, the Minister is
not liable, when it is conceded he would have been liable should
Ms K
have been detained on a reasonable suspicion of having committed an
offence and then raped, would be absurd.  It would
be a
conclusion quite at odds with our constitutional values and the
values of our community.”
[71]
I can say exactly
the same in respect of the present case.  If the applicant had
been detained by the police on reasonable
suspicion of having
committed an offence and Mr Mongo had visited her in police custody
as a lover and shot and wounded her in
the circumstances in which he
shot her, except for the venue, could it be suggested in those
circumstances that there was not a
strong connection between Mr
Mongo’s wrongful conduct and his employment as a police
officer?
[110]
In my view, that suggestion could simply not be made.
If, in that scenario, a close connection could be said to be present

between Mr Mongo’s wrongful conduct and his employment as a
police officer, is the venue of where the shooting happens all
that
makes the difference?  Another example.  If Mr Mongo had
negligently shot and injured the applicant while he was
taking his
pistol out to see how many rounds of ammunition were in it, could it
be said that the Minister would not have been vicariously

liable?
[72]
If the Minister would have been vicariously liable in such a case,
how can the Minister not be vicariously liable when the
shooting is
deliberate?
[111]
This Court also stated in
K
:
“When the policemen – on duty and in uniform –
raped the applicant, they were simultaneously failing to perform

their duties to protect the applicant.  In committing the crime,
the policemen not only did not protect the applicant, they
infringed
her rights to dignity and security of the person.  In so doing,
their employer’s obligation (and theirs) to
prevent crime was
not met.  There is an intimate connection between the delict
committed by the policemen and the purposes
of their employer.  This
close connection renders the respondent liable vicariously to the
applicant for the wrongful conduct
of the policemen.”
[73]
In
K
the
three policemen who raped Ms K were in police uniform, the vehicle in
which they transported her to the place where they raped
her was a
marked police motor vehicle and the policemen were on duty.
Like the policemen in
K
, in the present case, Mr Mongo was
also on duty.  Like the policemen in
K
, in the present
case Mr Mongo was also in police uniform.  Like in
K
where the policemen used a police vehicle to get to the spot where
they raped Ms K, in the present case, a marked police vehicle
was
used to transport Mr Mongo to the scene where he committed the
wrongful and criminal conduct against the applicant.  In

addition, Mr Mongo was to be picked up by a police vehicle at the end
of his and the applicant’s dinner.  Furthermore,
he was
also carrying a service pistol which is the one he used to shoot the
applicant.  The Minister, as employer, issues
service pistols to
police officers so that they can use them in certain circumstances
permitted by law.  This time Mr Mongo
used his service pistol in
circumstances in which he was not authorised to use it.  With
all these factors being present,
the conclusion that there was a
close connection between Mr Mongo’s wrongful conduct and his
employment as a police officer
is more than justified.
The judgment of
this Court in F
[112]
In
F
this Court said:
“As the Court stated in
K
,
the objective portion of the two-stage test requires a court to ask
whether there is a sufficiently close connection between the
wrongful
conduct and the wrongdoer’s employment.  This requires
‘
explicit
recognition of the normative content of this stage of the test.
The pivotal enquiry is therefore whether ‘there
was a close
connection between the wrongful conduct of the policemen and the
nature of their employment.’  That is the
question that
must be asked in determining the State’s vicarious liability in
this matter.
”
[74]
There are, at least,
two things that are important about what this Court said in this
passage.  The first is that the “pivotal
enquiry”
that must be conducted in order to establish whether the second leg
of the
Rabie
test is satisfied is whether “there was a
close connection between the wrongful conduct of the [wrongdoer] and
the nature
of [his or her] employment”.
[75]
That is the overall inquiry.  The question whether the trust
element was present must be asked as one of a number of
questions
that need to be asked in order to determine the pivotal question
referred to by Mogoeng J in the above paragraph.
The presence
or absence of the trust element is not the sole question that decides
the overall inquiry to establish whether the
second leg of the
Rabie
test has been satisfied.
[113]
The second important thing about the above passage is that
Mogoeng J made it clear in the last sentence of the passage that the
pivotal question to which he had just referred was the question that
“[had to] be asked in determining the State’s vicarious

liability in this matter.”
[76]
In other words, in
F
he did not say that the question to be
asked was whether the trust element was present.  After the
passage quoted above, the
Court proceeded to apply what it called the
“
K
test”.  In the next paragraph, this Court
first dealt with the first leg of the
Rabie
test or, as it put
it, the “
K
test”.  The Court concluded that
“[t]he first leg of the test, which is subjective does not
establish State liability
here”.
[77]
It then said: “What remains to be considered is whether the
requirements of the second leg of the test are met”.
[78]
[114]
In the next paragraph this Court set out the approach it
intended to adopt in determining whether the requirements of the
second
leg of the
Rabie
test had been met in
F.
It
said:
“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
policeman’s commission of rape and omission to protect the
victim; and the existence or otherwise
of an intimate link between
the policeman’s conduct and his employment.  All these
elements complement one another in
determining the state’s
vicarious liability in this matter
.
The state has a general duty to protect members of the public from
violations of their constitutional rights.  In grappling
with
the question of the state’s vicarious liability, the
constitutional obligations to prevent crime and to protect members
of
the public, particularly the vulnerable, must enjoy some prominence.
These obligations, as well as the constitutional
rights of
Ms F, are the prism through which this enquiry should be
conducted.”
[79]
[115]
I draw special attention to the second last sentence in
paragraph 52 where this Court said: “
All these elements
complement one another in determining the State’s vicarious
liability in this matter”
.
[116]
In
F
, Mogoeng J also said:
“I accept that the distinction between a policeman who is on
duty and one who was off duty is a relevant factor in determining
the
closeness of the connection between the wrongful act and the
perpetrator’s employment.  I do not accept, however,
that
it is determinative of whether the state may be held liable.”
[80]
In
F
this
Court considered various factors in deciding the question whether
there was a close connection between the wrongful conduct
of Mr van
Wyk and his employment.  These included the state’s
constitutional obligations and the interplay between commission
and
omission.  Under the heading of “Sufficiently close
connection”, this Court, inter alia, said:
“[The question whether, even though acts done have been done
solely for the purpose of the employee, there is nevertheless
a
sufficiently close link between the employee’s acts for his own
interests and the purposes and the business of the employer]
must
be answered by weighing the normative factors that justify the
imposition of liability on the policeman’s employer against

those pointing the other way
.”
[81]
[117]
This Court went on to say:
“Unlike before, when the test in deviation cases was whether
the employee acted within the course and scope of employment,
the
focus now is on whether—
‘the
connection between the conduct of the policemen and their employment
was sufficiently close to render the respondent
liable.’
The establishment of this connection must be assessed by the
explicit recognition of the normative factors that point to vicarious

liability including the constitutional mandate of the State, to
establish a credible and efficient police service on which the
public
ought to be able to rely for protection from and prevention of
crime.
That should be a police service worthy of the trust
of the public and one to which vulnerable members of the public ought

to turn readily for protection in times of need.”
[82]
[118]
This Court then pointed out that Ms F had trusted Mr van Wyk
but the latter had betrayed her trust when he raped her.  It
stated
that in
K
the policemen were on duty and in uniform and
driving a marked police vehicle.  This Court said that the
factors in
F
were “admittedly more tenuous”.
It then said:
“It is so that Mr van Wyk was not in uniform, that his police
car was unmarked and he was not on duty but on standby.
But
his use of a police car facilitated the rape. That he was on standby
is not an irrelevant consideration.  His duty to protect
the
public while on standby was incipient.  But it must be seen as
cumulative to the rest of the factors that point to the
necessary
connection.  He could be summoned at any time to exercise his
powers as a police official to protect a member of
the public. What
is more, in that time and space he had the power to place himself on
duty.  I am therefore satisfied that
a sufficiently close link
existed to impose vicarious liability on Mr van Wyk’s employer.
In conclusion: The police vehicle which was issued to him precisely
because he was on standby duty, enabled Mr van Wyk to commit
the
rape.  It enhanced his mobility and enabled him to give a lift
to Ms F.  Further, when Ms F re-entered the vehicle,
she
understood Mr van Wyk to be a policeman.  She made this
deduction from the dockets and the police radio in the vehicle.

In other words, he was identifiable as a policeman.  And, in
fact, he was a policeman.  Pivotal is the normative component
of
the connection test.  Beyond her subjective trust in Mr van Wyk,
is the fact that any member of the public, and in particular
one who
requires assistance from the police, is entitled to turn to and to
repose trust in a police official.”
[83]
[119]
In my view, if it could be held in
F
, as it was, that
there was a sufficient connection between Mr van Wyk’s rape of
Ms F and the Minister’s business, then
surely, in the present
case, there was a strong connection between Mr Mongo’s conduct
in shooting the applicant and his employment
as a police officer.
After all, to shoot the applicant, Mr Mongo used a service pistol
issued to him to use in certain circumstances
in the performance of
his duties but on this occasion he used it in circumstances in which
he was not authorised to use it.
In
F
this Court
expressly said that the fact that Mr van Wyk was on standby “[was]
not an irrelevant consideration”.
[84]
This Court continued: “His duty to protect the public while on
standby was incipient.  He could be summoned at
any time to
exercise his powers as a police official and protect a member of the
public”.
[85]
[120]
In the circumstances I conclude that there was a close
connection between Mr Mongo’s wrongful conduct and his
employment as
a police officer.  Therefore, I hold that the
Minister was vicariously liable for Mr Mongo’s wrongful
conduct.
In summary the following are the factors which justify
this conclusion—
(a) Mr Mongo was on duty at the time of the shooting;
(b) Mr Mongo was wearing a police uniform at the time of the
incident;
(c) being a police officer facilitated Mr Mongo’s access to the
service pistol he used to shoot the applicant;
(d) being on duty during the evening in question enabled Mr Mongo to
have access to a police vehicle which transported him to the

applicant’s place of residence, where he committed the wrongful
act;
(e) the arrangement that a police vehicle would pick him up after he
had had dinner with the applicant also facilitated his going
to the
applicant’s place in the assurance that he would not be
stranded when he had finished his dinner with the applicant;
(f) the only reason why Mr Mongo was carrying the firearm that he
used to shoot the applicant is that he was a police officer;
(g) as a police officer, he was allowed to use the firearm under
certain circumstances, but on this occasion he used it in
circumstances
in which he was not authorised or allowed to use it.
In other words, he abused his right to carry the firearm.  If a

police officer who is on duty abuses or misuses his service firearm
and shoots somebody in circumstances in which he should not
have shot
that person, the Minister should be held liable; there is no reason
why in those circumstances it should not be said
that there is a
strong connection between the shooting and the police officer’s
employment as a police officer; and
(h) Mr Mongo had constitutional and statutory obligations to protect
the applicant and to prevent harm towards her (i.e. the simultaneous

omission and commission factor).
[121]
That the applicant and Mr Mongo were not meeting as a police
officer and a member of the public but as romantic partners is
neither
here nor there because a police officer who is on duty has an
obligation to protect not only members of the public but also members

of his or her family and those close to him or her.
[122]
Mr Mongo’s employment as a police officer greatly
facilitated the shooting.  He carried a firearm because he was
employed
as a police officer.  A police officer has instructions
to use his service firearm only in certain authorised circumstances

but Mr Mongo used it in unauthorised circumstances by shooting the
applicant.  There is no evidence that Mr Mongo owned another

firearm and would have had access to another firearm at all on that
particular evening if he did not have access to the service
pistol.
The circumstances of this case establish a strong connection between
Mr Mongo’s wrongful conduct and his employment
as a police
officer.  Therefore, the second leg of the
Rabie
test has
been established.  In my view, the Supreme Court of Appeal
erred in concluding differently.  In
those circumstances I
conclude that the appeal should succeed and the decision of the
Supreme Court of Appeal should
be set aside and that
of the High Court restored.
[123]
In the result I would have made the following order:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The decision of the Supreme Court of Appeal is set aside and
replaced with the following order:
“The
appeal is dismissed with costs.”
4. The order of the High Court is restored.
5. The respondent must pay the applicants costs in this Court.
For the Applicant: A
G Dugmore SC instructed by Swarts Attorneys and N N Dullabh & Co
For the Respondent:
E A S Ford SC, J J Bester and M N Pango instructed by the
State Attorney, Port Elizabeth
[1]
A “deviation case” refers to a case in which a delict is
committed in circumstances where an employee deviates from
the normal
performance of his or her duties.  See Botha and Millard “The
Past, present and future of vicarious liability
in South Africa”
(2012) 2
De Jure
225 at 231.
[2]
Minister of Police v Rabie
1986 (1) SA 117
(A) (
Rabie
)
at 134C-E.
[3]
NK v Minister of Safety and Security
[2005] ZACC 8
;
2005 (6)
SA 419
(CC);
2005 (9) BCLR 835
(CC) (
K
) at para 32.
[4]
F v Minister of Safety and Security
[2011] ZACC 37
;
2012 (1)
SA 536
(CC);
2012 (3) BCLR 244
(CC).
[5]
The factual background is set out in
K
above n 3 at paras
2-7.
[6]
Id at para 49.
[7]
Id at para 44.
[8]
Id at paras 50-2.
[9]
The factual background is set out in
F
above n 4 at paras
8-16.
[10]
F
above n 4 at para 52.
[11]
F
above n 4 at para 81.
[12]
Booysen v Minister of Safety and Security
[2015] ZAECGHC 56
(High Court judgment).
[13]
68 of 1995.
[14]
High Court judgment above n 12 at paras 11-3.
[15]
Pehlani v Minister of Police
[2014] ZAWCHC 146.
In
Pehlani
, a police officer, who was on duty and in uniform,
left her post, went to find her boyfriend, and shot him with a
police firearm.
The High Court reasoned that the case was
analogous to
K
and
F
, in which a police car was used
to facilitate the crime, albeit indirectly.  According to the
High Court, a police firearm
facilitated the crime directly in
Pehlani
.  By imposing vicarious liability on the
Minister, the High Court held that the Minister would exercise
stricter control
over police firearms.
[16]
High Court judgment above n 12 at paras 15-6.
[17]
Id at para 18.
[18]
Minister of Safety & Security v Booysen
[2016] ZASCA 201
(SCA judgment).
[19]
Id at para 14.
[20]
Id at para 34.
[21]
Id at paras 18-9 and para 123.
[22]
Id at para 23.
[23]
Id at para 43.
[24]
Feldman (Pty) Ltd v Mall
1945
AD 733
at para 45 (
Feldman
).
[25]
Minister of Defence v Von Benecke
[2012] ZASCA 158
;
2013 (2)
SA 361
(SCA) (
Von Benecke
).
[26]
P E v Ikwezi Municipality
2016 (5) SA 114
(ECG).  This
case concerned a damages claim arising out of an alleged sexual
assault committed upon the plaintiff by an
employee of the
Municipality.  The employee was in a position of authority over
the plaintiff.  At para 77, the High
Court held:
“
[W]hen an employer places an employee in a
special position of trust, the employer bears the responsibility of
ensuring that the
employee is capable of trust.  That trust
‘forged a causal link’ between the [employee’s]
position as
Corporate Services Manager and the wrongful act.”
[27]
See
Paulsen v Slip Knot Investments 777 (Pty) Ltd
[2015] ZACC
5
;
2015 (3) SA 479
(CC);
2015 (5) BCLR 509
(CC) at para 29.
[28]
See
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1)
BCLR 36
(CC) (
Boesak
) at para  11:
“
A threshold requirement in applications
for leave relates to the issue of jurisdiction.”
See also:
Mankayi
v AngloGold Ashanti Ltd
[2011] ZACC 3
;
2011 (3) SA 237
(CC);
2011 (5) BCLR 453
(CC) at para 12 and
Koyabe v Minister for Home
Affairs
[2009] ZACC 23
;
2010 (4) SA 327
(CC);
2009 (12) BCLR
1192
(CC) at para 31.
[29]
Gcaba v Minister for Safety and Security
[2009] ZACC 26
;
2010
(1) SA 238
(CC);
2010 (1) BCLR 35
(CC) at para 75.
[30]
Sections 167(3)(b)(i) and (ii) of the Constitution.
[31]
See for example:
Loureiro v Imvula Quality Protection (Pty) Ltd
[2014] ZACC 4
;
2014 (3) SA 394
(CC);
2014 (5) BCLR 511
(CC) at
para 33;
Mbatha v University of Zululand
[2013] ZACC 43
;
(2014) 35 ILJ 349 (CC);
2014 (2) BCLR 123
(CC) at paras 193-4; and
Mankayi
above n 28 at para 12.
[32]
Mankayi
above n 28 at paras 10-2.
[33]
Mbatha
above n 31 at para 222.
[34]
K
above n 3 at para 12.
[35]
Phoebus Apollo Aviation CC v Minister of Safety and Security
[2002] ZACC 26
;
2003 (2) SA 34
(CC);
2003 (1) BCLR 14
(CC) (
Phoebus Apollo
)
at
para 9
quoted in
K
above n 3 at para 13.
[36]
F
above n 4 at para 36.
[37]
Minister of Safety & Security v Luiters
[2006] ZACC 21
;
2007 (3) BCLR 287
(CC);
2007 (2) SA 106
(CC) (
Luiters
).
[38]
Id at paras 31-2.
[39]
See cases listed in n 31 above.
[40]
I call it the
Rabie
test because it was decided upon in
Rabie
above n 2 and it appears in [11].
[41]
K
above n 3.
[42]
Id at para 18.
[43]
Mashongwa v Passenger Rail Agency of South Africa
[2015] ZACC
36
;
2016 (3) SA 528
(CC);
2016 (2) BCLR 204
(CC) (
Mashongwa
).
[44]
Id at para 13.
[45]
See [11].
[46]
K
above n 3 at para 23.
[47]
Id at para 19.
[48]
Id at paras 22-3.
[49]
Id at para 49.
[50]
Id at para 53.
[51]
Luiters
above n 37.
[52]
Id at para 18.
[53]
F
above n 4 at paras 51-2.
[54]
K
above n 3 at paras 52-3.
[55]
F
above n 4 at paras 52-3.
[56]
National Education Health & Allied Workers Union v University
of Cape Town
[2002] ZACC 27
;
2003 (3) SA 1
(CC);
2003 (2) BCLR
154
(CC)
(NEHAWU)
.
[57]
Id at para 26.
[58]
Id.
[59]
Loureiro
above n 31 at para 37.
[60]
Rabie
above
n 2
at 134.
[61]
K
above n 3 at paras 2-8.
[62]
Id at para 18.
[63]
Id at para 48.
[64]
Id at para 49.
[65]
Id at para 51.
[66]
Id at paras 52-3.
[67]
Id at para 51.
[68]
Id.
[69]
Id at para 53.
[70]
Id.
[71]
Id at para 56.
[72]
See also Johan Scott ‘Intentional delicts of police officers:
A hiccup from the Supreme Court of Appeal’ 2017 TSAR
872: 889.
[73]
K
above n 3 at para 57.
[74]
F
above n 4 at para 50.
[75]
Id.
[76]
Id.
[77]
Id at para 51.
[78]
Id.
[79]
Id at paras 52-3.
[80]
Id at para 67.
[81]
Id at paras 74-5 referring to the judgment in
K
above n 3.
[82]
Id at para 76.
[83]
Id at paras 80-1.
[84]
Id at para 80.
[85]
Id.