K v Minister of Safety and Security

• Jurisdiction: South Africa

K v Minister of Safety and Security
2005 (3) SA 179 (SCA)

2005 (3) SA p179

Citation	2005 (3) SA 179 (SCA)
Case No	456/03
Court	Supreme Court of Appeal
Judge	Scott JA, Mthiyane JA, Van Heerden JA, Erasmus AJA and Comrie AJA
Heard	September 2, 2004
Judgment	November 11, 2004
Counsel	J J Roestorf for the appellant.; P F Louw SC for the respondent.

Flynote : Sleutelwoorde B

Delict — Liability for — Vicarious liability — Vicarious liability of employer for delictual acts of employee — Liability of Minister of Safety and Security for criminal acts committed by police officers while on duty — Police officers guilty of rape — Whether Minister vicariously liable — Not possible to say that policemen were exercising functions to which appointed or carrying out some C instruction of employer — No reason existing to develop law to visit vicarious liability on State for crimes of police officers pursuing own selfish interests — Minister not vicariously liable.

Headnote : Kopnota

The appellant had been raped by three policemen who had offered her a lift home late at night. They had all three been in uniform. The D appellant had sought damages against the respondent Minister in a Local Division of the High Court, but the Court ordered absolution from the instance. Leave to appeal to the Supreme Court of Appeal was, however, granted. The point at issue was whether the respondent could be held vicariously liable for the conduct of the policemen. The conduct relied upon was (a) the actual rape of the appellant E by each of the three policemen, and (b) the failure of each to intervene when one or the other of their co-rapists was raping the appellant. The appellant relied, inter alia, on Minister van Polisie v Ewels 1975 (3) 590 (A). It was conceded on behalf of the appellant that under the common law no vicarious liability could attach to the Minister. It was argued, however, that because the case involved an infringement of the appellant's constitutional rights, the common law relating to the F vicarious liability of the State for delicts committed by police officers had to be developed so as to render the Minister liable.

Held, applying the standard test for vicarious liability in 'deviation' cases, that it could not be said that the policemen were, while raping the appellant, still exercising the functions to which they were appointed or carrying out some instruction of their employer. G They were motivated by nothing more than self-gratification. Acting in concert, they deviated from their functions and duties as policemen to such a degree that it could not be said that in committing the crime of rape they were in any way exercising those functions or performing those duties. (Paragraphs [4] and [5] at 183D - E and 183H - 184A.) H

Held, further, that the facts of the present case could be distinguished from those in the Ewels case. In casu the element of wrongfulness was not in issue: The conduct of all three policemen was not only wrongful but criminal from the time they conspired to rape the appellant until the attack ended. They were at all times acting in pursuance of a common purpose, and to suggest that one was acting in the course and scope of his employment while another physically raped the appellant, ceased so to act when it was 'his turn', and then resumed acting in such capacity while the third I raped the appellant, bordered on the absurd. (Paragraph [7] at 184F - H.)

Held, further, that no convincing case was advanced to sustain the submission that the common law had to be developed so as to impose absolute liability on the State for the dishonest and selfish conduct of its employees. J

2005 (3) SA p180

(Paragraph [8] at 185G.) (Phoebus Apollo Aviation CC v Minister of Safety and Security 2003 (2) SA 34 (CC) in para [6] applied.) Appeal dismissed. A

The decision in the Witwatersrand Local Division in Kern v Minister of Safety and Security confirmed.

Cases Considered

Annotations

Reported cases B

Carmichele v Minister of Safety and Security and Another 2001 (1) SA 489 (SCA): referred to

Carmichele v Minister of Safety and Security and Another 2003 (2) SA 656 (C) (2002 (10) BCLR 1100): referred to

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) (2001 (10) BCLR 995): referred to C

Feldman (Pty) Ltd v Mall 1945 AD 733: referred to

Fawcett Security Operations (Pvt) Ltd v Oman Enterprises (Pvt) Ltd 1991 (2) SA 441 (ZH): discussed

Fawcett Security Operations (Pvt) Ltd v Oman Enterprises (Pvt) Ltd 1992 (4) SA 425 (ZSC): referred to D

Hirsch Appliance Specialists v Shield Security Natal (Pty) Ltd 1992 (3) SA 643 (D): dictum at 651H - 652A applied

Minister of Safety and Security and Another v Carmichele 2004 (3) SA 305 (SCA) (2004 (2) BCLR 133): referred to

Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA): referred to E

Minister of Safety and Security v Jordaan t/a André Jordaan Transport 2000 (4) SA 21 (SCA): referred to

Minister van Polisie v Ewels 1975 (3) SA 590 (A): referred to

Minister van Veiligheid en Sekuriteit v Japmoco BK t/a Status Motors 2002 (5) SA 649 (SCA): referred to F

Minister van Veiligheid en Sekuriteit v Phoebus Apollo Aviation BK 2002 (5) SA 475 (SCA): referred to

Phoebus Apollo Aviation CC v Minister of Safety and Security 2003 (2) SA 34 (CC) (2001 (3) BCLR 14): applied

Van Eeden v Minister of Safety and Security (Women's Legal Centre Trust as Amicus Curiae) 2003 (1) SA 389 (SCA): referred to

Viljoen v Smith 1997 (1) SA 309 (A): referred to. G

Case Information

Appeal against a decision in the Witwatersrand Local Divison (Flemming AJP). The facts appear from the judgment of Scott JA.

J J Roestorf for the appellant.

P F Louw SC for the respondent. H

In addition to the authorities referred to in the judgment of the Court, counsel for the parties referred to the following authorities:

ABSA Bank Ltd v Bond Equipment (Pretoria) (Pty) Ltd 2001 (1) SA 372 (SCA) I

African Guarantee and Indemnity Co Ltd v Minister of Justice 1959 (2) SA 437 (A)

Bazley v Curry (1999) 174 DLR (4th) 45 (Con SC)

Bezuidenhout v Eskom 2003 (3) SA 83 (SCA)

Botha v Minister van Veiligheid en Sekuriteit 2003 (6) SA 568 (T)

British South Africa Company v Crickmore 1921 AD 107 J

2005 (3) SA p181

Cooper v Syfrets Trust Ltd 2001 (1) SA 122 (SCA) A

Costa da Oura Restaurant (Pty) Ltd t/a Umdloti Bush Tavern v Reddy 2003 (4) SA 34 (SCA)

Dithipe v Ikageng 1992 (4) SA 748 (T)

Esskay Electronics (Pte) Ltd v FNB of Southern Africa Ltd 2001 (1) SA 1214 (SCA) B

Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218

Estate Van der Byl v Swanepoel 1927 AD 141

Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd 1997 (2) SA 591 (W)

Hamman v SWAPO 1991 (1) SA 127 (SWA) C

Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A)

Jacobie v Vernon (1999) 174 DLR (4th) 71 (Con SC)

Lister v HesleyHall Ltd [2001] 2 All ER 769 (HL)

Makhala v Maokeng 1993 (1) SA 434 (A)

Mary M v City of Los Angeles (1991) 54 Cal 3d 202 D

Masuku and Another v Mdlalose and Others 1998 (1) SA 1 (SCA)

McCann v Goodall Group Operations (Pty) Ltd 1995 (2) SA 718 (C)

Messina Associated Carriers v Kleinhans 2001 (3) SA 868 (SCA)

Mhlongo and Another v Minister of Police 1978 (2) SA 551 (A)

Minister of Law and Order v Ngobo 1992 (4) SA 822 (A) E

Minister of Police v Mbilini 1983 (3) SA 705 (SE)

Minister of Police v Rabie 1986 (1) SA 117 (A)

Minister van Polisie v Gamble 1979 (4) SA 759 (A)

Minister van Wet en Orde v Wilson 1992 (3) SA 920 (A)

Mkhatswa v Minister of Defence 2000 (1) SA 1104 (SCA)

Mkize v Martens 1914 AD 382 F

Mkwananzi v Van der Merwe 1970 (1) SA 609 (A)

Moosa v Dooma and the Vereeniging Municipality 1943 TPD 30

Morris v C W Martin & Sons Ltd [1965] 2 All ER 725 (QB)

Nkumbi v Minister of Law and Order 1991 (3) SA 29 (E)

Photo Production Ltd v Securicor Transport Ltd [1980] 1 All ER 556 (HL) G

Rabie v Minister of Police 1984 (1) SA 786 (W)

S v M 1950 (4) SA 101 (T)

S v Thebe 1961 PH H247 (A)

S v Van As 1967 (4) SA 594 (A) H

Sibiya v Scott NO 1950 (4) SA 515 (A)

Smit v Die Minister van Polisie 1997 (4) SA 893 (T)

Tshabalala v Lekoa City Council 1992 (3) SA 21 (A)

Union Government v Hawkins 1944 AD 556

Union Government (Minister of Justice) v Thorne 1930 AD 47 I

Van Drimmelen and Partners v Gowar [2004] 1 All SA 175 (SCA)

Viljoen v Smith 1997 (1) SA 309 (A)

Cane 'Vicarious Liability for Sexual Abuse' 2000 LQR 21

Jescheck Lehrbuch des Strafrechts (Allgemeiner Teil) 3rd ed

Neethling et al Law of Delict 3rd ed at 373 - 8 J

2005 (3) SA p182

Neethling and Potgieter 'Middelike Aanspreeklikheid van 'n Werkgewer vir die Opsetlike Delikspleging (Diefstal, Bedrog) A van 'n Werknemer' 1999 (4) TSAR 772

Salmond and Heuston The Law of Torts 19th ed at 510

Scott Middelike Aanspreeklikheid in die Suid-Afrikaanse Reg at 1483

Scott 'Some Reflections on Vicarious Liability and Dishonest Employees' 2000 Acta Juridica 265. B

Cur adv vult.

Postea (November 11). C

Judgment

Scott JA:

[1] The appellant, a young woman in her early twenties, was raped by three policemen in the early hours of 27 March 1999 in circumstances described more fully below. She sued the respondent and the three policemen for damages in the Johannesburg High Court but subsequently abandoned her claim against the policemen, each of whom D was sentenced to life imprisonment for rape and 10 years' imprisonment for kidnapping. The sole question in issue in the Court below was whether the respondent was vicariously...