Booysen v Minister of Safety and Security

• Jurisdiction: South Africa
• Judge: Zondo DCJ, Cameron J, Froneman J, Jafta J, Kathree-Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J, Theron J and Zondi AJ
• Judgment Date: 27 June 2018
• Citation: 2018 (6) SA 1 (CC)
• Docket Number: CCT 25/17 [2018] ZACC 18
• Hearing Date: 27 June 2018
• Counsel: AG Dugmore SC for the applicant. EAS Ford SC (with JJ Bester and MN Pango) for the respondent.
• Court: Constitutional Court

Mhlantla E J (Cameron J, Froneman J, Jafta J, Kathree-Setiloane AJ, Kollapen AJ, Madlanga J, Theron J and Zondi AJ concurring):

Introduction

[1] F 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 G 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] H 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 I 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 J deceased for many years and confirmed that they were involved in an

Mhlantla J (Cameron J, Froneman J, Jafta J, Kathree-Setiloane AJ, Kollapen AJ, Madlanga J, Theron J and Zondi AJ concurring)

intimate relationship and that she fell in love with a private individual A 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 B 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 C 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 D 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 E 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. F

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] G

[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 H

Mhlantla J (Cameron J, Froneman J, Jafta J, Kathree-Setiloane AJ, Kollapen AJ, Madlanga J, Theron J and Zondi AJ concurring)

(the A 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 B 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 C 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 D 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 E 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 F 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 s 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 judgment, O'Regan J, in finding for Ms K, held that a G 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 H 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 I 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

Mhlantla J (Cameron J, Froneman J, Jafta J, Kathree-Setiloane AJ, Kollapen AJ, Madlanga J, Theron J and Zondi AJ concurring)

sufficient connection between the wrongful act and the employment. [7] A 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 B 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 C 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] D

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, E Mr Van Wyk was employed as a police officer by the SAPS and during that evening was on stand-by 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. F

[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. G 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. H

[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, I Mr Van Wyk left. Ms F then came out of her hiding place and stood on...