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[2014] ZAWCHC 146
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Pehlani v Minister of Police (9105/2011) [2014] ZAWCHC 146; (2014) 35 ILJ 3316 (WCC) (25 September 2014)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 9105/2011
DATE:
25 SEPTEMBER 2014
In
the matter between:
THEMBELANI
ISAAC PEHLANI
..................................
PLAINTIFF
And
THE
MINISTER OF POLICE
.....................................
DEFENDANT
Coram
:
ROGERS J
Heard:
8 SEPTEMBER 2014
Delivered:
25 SEPTEMBER 2014
JUDGMENT
ROGERS
J:
Introduction
[1]
I am asked to determine a separated issue
in an action instituted by the plaintiff against the Minister of
Police for damages following
an incident on 18 January 2011 in which
a Ms
Nombuyiselo Petshwa (‘Petshwa’
)
fired a number of shots at the plaintiff, two of which struck him.
The separated issue is whether the defendant is vicariously
liable
for Petshwa’s conduct. Mr Filand appeared for the plaintiff and
Mr Jaga for the Minister.
[2]
No evidence was led on the separated issue.
The parties stated a special case for adjudication. The summary which
follows is extracted
from the special case.
[3]
The plaintiff and Petshwa were involved in
an intimate relationship for several years until December 2010, when
the plaintiff terminated
it. Petshwa, who was at all material times a
police reservist, made aggressive threats in an attempt to get the
plaintiff to stay
with her. On 6 January 2011 she threw petrol over
him and tried to set him alight. On 15 and 16 January 2011 she sent
him several
emails which were at once emotional and threatening. In
one of these she said that, if he did not return to her, she would
book
out a firearm and kill him.
[4]
On 18 January 2011 Petshwa booked herself
on beat duty for the period 09h45-18h00. For this purpose she was
attired in a SAPS uniform
and issued with a SAPS firearm, 15 rounds
of ammunition and the other paraphernalia of a police officer. Her
beat area was confined
to the Cape Town Parade. Petshwa volunteered
for duty on this date with the intention of being placed in
possession of the firearm
and ammunition and of shooting the
plaintiff.
[5]
Shortly after noon the plaintiff, who
worked in the city centre, went to the Mr Price retail store in
Adderley Street. This was
not within Petshwa’s beat area. While
he was in the shop Petshwa, who had followed him, approached him and
fired about six
shots at him with her SAPS firearm. The first shot
struck him on his right thumb. He tried to disarm her, whereupon she
shot at
him again and he was struck in the abdomen. The plaintiff
then managed to dispossess her.
[6]
The plaintiff sustained injuries for which
he was hospitalised from 18 January to 12 March 2011.
[7]
In the immediate aftermath of the shooting
Petshwa falsely claimed that the plaintiff had attempted to rob her
of her firearm, which
led to her firing the shots. As a result the
plaintiff was arrested and charged with robbery. When the true facts
emerged, the
charge was withdrawn and Petshwa was charged on two
counts of attempted murder and one count of defeating the ends of
justice.
The one count of attempted murder related to the shots fired
at the plaintiff, the other to a shot which hit a member of the
public.
[8]
Petshwa pleaded guilty and was convicted on
20 December 2011. The three counts were taken together for purposes
of sentence. She
was sentenced to eight years’ imprisonment of
which two years were suspended.
[9]
Due to her unlawful conduct, Petshwa
forfeited the cover afforded to SAPS members in terms of the National
Treasury Regulations.
[10]
The plaintiff did not, prior to the
shooting, inform the police of Petshwa’s threats or her attempt
to set him alight. The
defendant, through his officials, only learnt
of these matters after the shooting.
[11]
A police reservist performs voluntary duty
in SAPS. In terms of SAPS Standing Orders, a police member may not
leave his or her beat
area except for certain stated purposes, none
of which applied here.
[12]
The
parties agreed that, if the defendant was vicariously liable, the
plaintiff’s shooting was caused partly by Petshwa’s
fault
and partly by the plaintiff’s fault and that the defendant was
to be liable for 70% of the plaintiff’s damages
(still to be
proved). Given the parties’ agreement, it is unnecessary to
decide whether, in the absence of agreement, such
an apportionment
would have been permissible or appropriate.
[1]
Statutory
provisions
[13]
In terms of s 205(3) of the Constitution,
the objects of SAPS are to prevent, combat and investigate crime,
maintain public order,
protect and secure the country’s
inhabitants and their property and uphold and enforce the law.
[14]
Although I was not referred in argument to
the South African Police Service Act 68 of 1995 (‘the SAPS
Act’) or the Firearms
Control Act 60 of 2000 (‘the
Firearms Act’), there are certain provisions of those Acts
which I should mention.
[15]
Section 48(1) of the SAPS Act permits the
National Commissioner of SAPS to determine the requirements for
recruitment, resignation,
training, ranks, promotion, duties and
nature of service, discipline, uniform, equipment and conditions of
service of members of
the Reserve Police Service and any other matter
which he or she deems necessary in order to establish and maintain
different categories
of members of the Reserve. In terms of s 48(6)
a member of the Reserve is deemed to be in SAPS’ employ ‘while
on duty’, notwithstanding the fact that such member may not be
remunerated by SAPS.
[16]
The word ‘member’ is defined in
s 1 of the SAPS Act to include, except for the purposes of any
provision of the
SAPS Act in respect of which the National
Commissioner may otherwise determine, any member of the Reserve while
such member is
on duty. My attention was not directed to any relevant
exception.
[17]
An ordinary member of the public can only
lawfully possess a firearm with an appropriate licence issued in
terms of the Firearms
Control Act 60 of 2000 (s 3). There are
heavy penalties for contraventions of the Act (s 121 read with
Schedule 4) –
up to 15 years’ imprisonment for unlicensed
possession of a firearm or ammunition and up to 25 years in the case
of an automatic
firearm.
[18]
Various public security agencies, including
SAPS, are exempt from the requirements of the
Firearms Control Act
(s
96). In their case, the system of licensing which ordinarily
applies is replaced by a system whereby permits are issued by
the
agency in question to its members
(s 98).
In the case of SAPS,
the permit would be issued by the National Commissioner, as the head
of SAPS, or by someone designated in
writing by him or her
(s 98(2)).
In terms of
s 98(4)
the SAPS National Commissioner is empowered
to impose conditions on the possession and use of SAPS firearms and
ammunition and
may issue instructions to SAPS members prescribing
conditions relating to the acquisition, storage, transport, carrying,
position,
use and disposal of such firearms and ammunition.
[19]
Section 98(5)(a)
requires that, unless the
permit indicates otherwise, the SAPS member must, when on duty, carry
a handgun ‘in a prescribed
holster.’ At the end of his or
her period of duty the member must return the firearm to the
designated place of storage
(s 98(5)(b)).
[20]
Section 98(8) of the Firearms Act states
that a permit may only be issued under that section if the member ‘is
a fit and proper
person’ to possess a firearm and has
successfully completed the prescribed training and prescribed test
for the safe use
of the firearm.
[21]
Despite her deviant conduct, Petshwa was on
duty as a reservist at the time of the shooting and was thus deemed
to be in SAPS’
employ. The parties’ agreement that she
was issued with a firearm when she came on duty necessarily implies
that a permit
was issued to her in terms of s 98 of the Firearms
Act.
Vicarious
liability
[22]
The modern test for vicarious liability has
been explained in several recent judgments of the Constitutional
Court, in particular
K v Minister of
Safety & Security
[2005] ZACC 8
;
2005 (6) SA 419
(CC) and
F v Minister of Safety &
Security
2012 (1) SA 536
(CC). These
cases emphasise that the normative considerations which underlie the
imposition of vicarious liability cannot be ignored
in formulating
the test and applying it to the facts of particular cases. The main
normative considerations in favour of vicarious
liability are the
desire to afford claimants efficacious remedies and the objective of
encouraging employers to take active steps
to prevent employees from
causing harm to third parties (see the
K
case para 21).
[23]
In terms of these cases, the general test
that now applies where an employee has deviated from the his or her
authorised duties
(an adaptation of the approach in
Minister
of Police v Rabie
1986 (1) SA 117
(A))
is the following: [a] If an employee is seeking, albeit improperly,
to advance his or her employer’s interests, the
employer may be
vicariously liable. This is a subjective test. On the subjective test
there would be no vicarious liability if
the employee were acting
solely in his or her own interests. [b] Even if there is no vicarious
liability on the subjective test,
the employer may still be liable if
objectively there is a sufficiently close link between the employee’s
act and the purposes
and business of the employer (the
K
case para 44; the
F
case paras 49-50). It is the second of
these tests that in particular allows a court to have regard to
normative and policy considerations.
[24]
Both the
K
and
F
cases concerned policemen who were guilty of rape. In both cases the
Minister was held vicariously liable on the objective deviation
test.
In
K
the
considerations that led (on the objective test) to vicarious
liability were [a] that the policemen had a statutory and
constitutional duty to prevent crime and protect the public; [b] that
the policemen were on duty, were wearing uniforms and driving
a
marked police vehicle; [c] that they had offered to help the victim
and that she had reposed trust in them by accepting their
offer; [d]
that the policemen’s wrongful acts of commission (the rape)
were accompanied simultaneously by omissions (a failure,
in breach of
their duties, to protect the victim).
[25]
In the
F
case the grounds for liability were more tenuous but the Minister was
still held vicariously liable. In
F
the
policeman was not in uniform and his car, though a police vehicle,
was unmarked. He was not on duty at the time and was
thus not in
uniform, but he was on standby duty. The court held that there was a
sufficiently close connection between the policeman’s
act and
the purposes and business of his employer (the Minister). The
policeman had had a constitutional duty to protect the victim.
The
vehicle, issued to him because he was on standby, enabled him to
commit the crime. The complainant, a 13-year-old girl, had
been a
vulnerable person to whom the policeman had owed a duty of
protection. His commission of the rape simultaneously involved
an
omission to protect the complainant. There was evidence that, by the
time the complainant accepted a lift from the policeman
on the second
of two occasions that evening, she knew he was a policeman and
reposed trust in him.
[26]
I was referred in argument to a third
judgment of the Constitutional Court,
Minister
of Safety and Security v Luiters
[2006] ZACC 21
;
2007
(2) SA 106
(CC). In that case an off-duty police officer had shot the
plaintiff with his SAPS firearm. The Minister was held vicariously
liable
on the basis of the subjective deviation test. Langa CJ,
writing for a unanimous court, rejected an argument on behalf of the
Minister
that the test in
K
should
be varied so as to preclude vicarious liability where an off-duty
police officer, though subjectively intending to fulfil
his or her
duties, acted in a manner which was completely unrelated to the
purposes for which the officer was employed (para 21).
The argument
was based on the supposed different levels of control exercised over
on-duty and off-duty police officers. Langa CJ
said that the degree
of control did not necessarily differ but continued:
‘
[33]
… But even if this contention were correct, that alone would
not in my view warrant a different level of scrutiny. While
vicarious
liability is not based on the employer’s control over an
employee, the level of control exercised by the employer
will
obviously be a relevant factor in determining whether there was a
sufficiently close link between the conduct and the employment
when
considering the second stage of the
K
test. The level of control is therefore
already a relevant consideration. It does not seem necessary or
desirable to elevate it
to the status of a decisive factor which
determines the test that applies.
[34] It moreover
seems to me that counsel for Mr Luiters is correct in suggesting that
the variation to the rule, as suggested by
the Minister, would have
the effect of lessening the emphasis on the responsibility of the
Minister to ensure that police officers
are properly trained and
carefully screened to avoid the risk that they will behave in a
completely improper manner. What it would
mean is that the more
improper the conduct of the police officer, the less likely the
Minister will be held liable. This result
is not one that accords
with a Constitution that seeks to render the exercise of public power
accountable.’
Application
of the law
[27]
This is a deviation case. Counsel were
agreed that the Minister could not be held vicariously liable on the
subjective deviation
test. Petshwa did not intend, when shooting the
plaintiff, to advance the interests of SAPS in any way.
[28]
As to the objective deviation test, Mr Jaga
sought to distinguish
K
and
F
,
primarily on the basis that in the present case there was no question
of the plaintiff having reposed trust in Petshwa in her
capacity as a
police reservist. However,
K
and
F
are not
authority for the proposition that any particular factors need to be
present before the Minister can be held liable for
the wrongful act
of a police official. The ultimate question, on the objective
deviation test, is whether the deviant conduct is
‘sufficiently
connected to the employer’s enterprise’, the answer to
which in any given case must be approached
‘with the spirit,
purpose and objects of the Constitution in mind’. The test is
‘sufficiently flexible to incorporate
not only constitutional
norms, but other norms as well’ (
K
para 44).
[29]
In certain circumstances the fact that a
victim reposed trust in a police official will be an important
circumstance in determining
whether the latter’s deviant
conduct was ‘sufficiently connected’ with police business
to justify the imposition
of vicarious liability. Although the
element of trust was mentioned in both
K
and
F
,
it was not necessary in either case for the court to decide whether,
if this element had been absent, vicarious liability would
still have
been warranted. In each case there were other circumstances in favour
of vicarious liability. The element of trust may
perhaps have been
more critical to the outcome of
F
than
K
, given
that in
F
the
delinquent policeman was not on duty.
[30]
The significance of trust, as a connecting
factor between deviant conduct and SAPS business in cases such as
F
and
K
,
seems to me to be that it forges a causal link between the
wrongdoer’s position as a police official and the wrongful act.
The factual finding in each case appears to have been that the
complainant would not have got into the vehicle but for the trust
which the complainant reposed in the police official. And if the
complainant had not got into the vehicle, she would not or might
not
have been raped. It is unnecessary to decide whether, in cases such
as
F
and
K
,
vicarious liability depends on showing that the rape would probably
not have occurred but for the fact that the complainant reposed
trust
in the delinquent police official. It may perhaps be sufficient that
the complainant’s trust facilitated the perpetration
of the
rape even though the wrongdoer would, in the absence of trust,
probably have forced the complainant into his vehicle in
any event.
[31]
In the present case there is no question of
trust in the sense contemplated in
F
and
K
. Petshwa
took the plaintiff by surprise. However, trust of that kind is not,
in the circumstances of the present case, a prerequisite
for forging
a sufficiently close connection between the wrongful conduct and SAPS
business. Petshwa was on duty and in uniform.
That she chose to place
herself on duty to facilitate the crime does not detract from the
fact that she was, at the relevant time,
a police reservist on duty.
While on duty she had all the duties of a police officer, including
importantly the duty to protect
members of the public from crime. Not
only did she fail to do so; she used her official firearm in her
attempt to murder the plaintiff.
Furthermore, and while she was on
duty, she was subject to the control of the Minister through those
officers who had command of
Petshwa.
[32]
The fact that Petshwa used a SAPS firearm
to shoot the plaintiff is, in my view, a particularly weighty factor
in the conclusion
that there was a sufficiently close connection
between her wrongful conduct and SAPS business. In
K
and
F
the
wrongdoers used police vehicles to facilitate their crimes. The
vehicles were, however, only an indirect aid to the perpetration
of
the rapes, hence the significance of other factors. Here, by
contrast, the firearm was the very means by which the crime was
committed. Of all the accoutrement of police office, the firearm is
the most obviously and immediately dangerous. The normative
values
underlying the imposition of vicarious liability would be served by
acknowledging the risk created for members of the public
when police
officials are placed in possession of dangerous weapons and by
encouraging strict official control over the issuing
of firearms to
police officials. This does not mean, of course, that vicarious
liability is dependent on whether or not the Minister
or his
officials were negligent in issuing the firearm to the particular
official; if such negligence were shown, SAPS would be
held liable on
account of such negligence and it would be unnecessary to determine
whether the Minister was vicariously liable
for the intentional
wrongdoing of the shooter. What vicarious liability achieves is to
contribute to a culture of strict control
of a risk-creating
activity.
[33]
The fact that trust by a victim in the
delinquent officer is not a prerequisite for vicarious liability is
illustrated by the judgment
of the Supreme Court of Appeal in
Minister of Defence v Von Benecke
2013
(2) SA 361
(SCA). The plaintiff suffered gunshot injuries during the
course of an armed robbery. A member of the defence force, one
Motaung,
whose responsibilities included the safekeeping and storage
of weapons, stole various rifle parts and ammunition and supplied
them
to the robbers. The Minister of Defence was held vicariously
liable on the objective deviation test even though the plaintiff
obviously
did not repose trust in the robbers or in Motaung, of whom
he had probably never heard. The element of trust was also absent in
Rabie supra
,
where the emphasis was placed on the risk created by the State in
appointing the delinquent person as a member of the force and
thus
clothing him with the powers of a police officer (at 134D-135B). And
see also
Ramango & Another v
Mashamba & Others
[2013] ZAGPPHC
418, a case in which the Minister was held liable where an off-duty
police officer shot and killed his former wife
with his SAPS firearm.
[34]
Although trust of the kind contemplated in
K
and
F
(ie individual trust by the victim) is
not a factor in the present case, trust in a broader sense cannot be
discounted. A member
of the public who walks around displaying a
firearm is likely to attract attention. The firearm would have to be
completely covered
in a holster (s84 of the Firearms Act). Law
enforcement officials could well ask the person to produce his or her
license to possess
the firearm (s107 read with s3 of the same Act).
However, members of the community, other law enforcement officers and
private
security officials know that SAPS members are generally
entitled to bear arms and trust SAPS members to use them lawfully and
only
when necessary. Petshwa, in walking about in the city with a
firearm, was, by virtue of her office and uniform, given a freedom
of
movement she might not have expected to enjoy if she had been off
duty and in civilian clothes.
[35]
For these reasons I consider that the
Minister is, on the objective deviation test, vicariously liable for
Petshwa’s conduct.
Conclusion
[36]
it follows from my finding and from the
parties’ agreement that the Minister must be declared liable
for 70% of the plaintiff’s
damages as agreed or proved.
[37]
This matter was originally enrolled for
hearing on 28 August 2014. I was told that the matter did not proceed
on that date because
the Judge-President’s secretary did not
receive from the plaintiff’s legal representative the
notification required
by para 2 of Practice Note 42 and thus did not
allocate the case. Mr Filand informed me, and Mr Jaga did not
dispute, that he filed
a written practice note at the general filing
office on 26 August 2014 at a time when the court file had not yet
been sent to the
Judge-President. The relevant paragraph in the
Practice Note does not require the note to be ‘delivered’
or’
filed’; what the plaintiff’s legal
representative must do is to advise the Judge-President’s
secretary of certain
matters. This can be done by fax or email.
[38]
I do not know whether Mr Filand’s
practice note was in the court file when it was delivered to the
Judge-President’s
office. What is clear, though, is that, if
the plaintiff’s counsel or attorney had complied with the terms
of the Practice
Note by communicating in writing with the
Judge-President’s secretary rather than delivering a document
to the general filing
office, the matter would have been allocated.
[39]
It is unfortunate that there was a
postponement, given the diligent manner in which Mr Filand has
conducted the case. Nevertheless,
I am bound to find that the
postponement was brought about by the plaintiff’s failure to
comply strictly with the relevant
Practice Note. The plaintiff must
thus bear the wasted costs of 28 August 2014. Whether those costs
will amount to anything will
depend on whether the defendant’s
counsel elects to charge a refresher fee for the wasted day.
[40]
I make the following order:
(a)The defendant is
liable for 70% of the plaintiff’s damages, as agreed or proved,
suffered in consequence of the shooting
alleged in the particulars of
claim.
(b)The
defendant is ordered to pay the plaintiff’s costs associated
with the determination of the separated issue, save that
the
plaintiff shall pay the defendant’s wasted costs (if any) of
the postponement on 28 August 2014.
ROGERS
J
APPEARANCES
For Plaintiff:
Mr D Filand
Instructed
by:
Thamsanqa
Phillips Attorneys
170
Ntlazane Place
1
st
Floor, Dr Bhikitsha Building
Ilitha
Park
Khayelitsha
For Defendant:
Mr R Jaga
Instructed
by:
The
State Attorney
4
th
Floor, Liberty Life Centre
22
Long Street
Cape
Town
[1]
Cf
Minister
van
Wet
en Orde en ʼn Andere v Ntsane
[1992] ZASCA 210
;
1993
(1) SA 560
(A) at 570B-D and Neethling
et
al Law of Delict
6
th
Ed at 162. In response to my query,
the
Minister's counsel referred me to
Minister
of Safety and Security v Venter & Another
2011
(2) SACR 67
(SCA) but that was a conventional case of negligence on
both sides rather than
dolus
on
one side and
culpa
on
the other.