Mathibela v The Minister of Police
| Jurisdiction | South Africa |
| Judge | NM Mavundla J |
| Judgment Date | 15 January 2020 |
| Docket Number | 36972/2017 |
| Court | North Gauteng High Court, Pretoria |
| Hearing Date | 15 January 2020 |
| Citation | 2020 JDR 0157 (GP) |
Mavundla J:
The plaintiff is an adult female residing at Winterveldt, Gauteng Province. She sued the defendant for damages she allegedly suffered in an amount of R4, 000, 000, 00 (four million rand) as the result of being unlawfully shot by one Mr Seloane, who at the relevant time was a member of and in the employ of the South African Police Service, but was off duty, on 16 July 2016. It is common cause that the handgun used in the shooting incident was Sealoane's SAPS issued, in respect of which he had been issued with a temporary firearm licence.
It needs mentioning that, by agreement between the parties, the issue of quantum was separated from the merits in terms of rule 33(4) and postponed sine die. The only issue to be determined in the merits, is the question of liability, in particular, whether the defendant can be held vicariously liable for the actions of Seloane, in shooting the plaintiff: (i) at a private function;(ii) when he was not in uniform; (iii) travelling in his own motor vehicle; (iv) not on duty; (v) pursuing his own interest (on his own frolic); (vi) having deviated from the generally accepted norm.
It is common cause that on the relevant date of the shooting incident, there was a family party or function in progress at the family home. Seloane suspected the plaintiff of having a romantic relationship with a certain gentleman who had also attended the party. An argument ensued between the plaintiff and Seloane. This resulted in Seloane shooting the aforesaid gentleman and the plaintiff. He fired several shots at and which hit both the said gentleman and the plaintiff. Seloane eventually loaded the plaintiff into his vehicle and rushed her to the hospital, where she was treated. Luckily the injuries sustained by the plaintiff were not fatal. Seloane was eventually arrested and charged with two counts of attempted murder, for which he was duly convicted. In casu, it is common cause that Seloane when he shot at the plaintiff he wanted to kill her.
The respective counsel for the parties are ad idem that the test for vicarious liability was as enunciated and developed in the following authorities: Rabie v Minster of Police; [1] K v Minster of Safety and Security [2] and F v Minister of Safety and Security, [3] namely, a two stage enquiry for the imposition of vicarious liability in the so called deviation cases. Deviation is a matter where: firstly, subjectively speaking the wrongdoer was not on his master's business and therefore did not create a vicarious link, having regard to these subjective considerations of the wrongdoer. Secondly, the state of enquiry is whether, objectively speaking, there is a sufficiently close link between the employer's conduct and
2020 JDR 0157 p3
Mavundla J
the business of the employer. At this stage of enquiry various factors and considerations should be weighed as was formulated in K and F, vide preceding paragraph.
It was submitted on behalf of the defendant that:
in casu, the shooting could not have been foreseen by the defendant or its functionaries in issuing Seloane with a firearm, relying, inter alia, on the decision in the matter of Booysen v Minster of Safety and Security [4] , because the shooting took place in a domestic lover's setting where Seloane and plaintiff were not relating to each other as police officers and citizen; the plaintiff never reposed trust in Seloane due to his employment as a police reservists with SAPS; there was no evidence that Seloane acted as a police officer, nor was there evidence that when he was issued with the firearm, the management of SAPS was aware or should have been aware that this created a material risk of harm to the community, in particular to the plaintiff, his girlfriend.
In the matter of Minister of Safety and Security v Nancy Msi [5] the Supreme Court of Appeal cited its judgment in the Booysen matter where the Supreme Court of Appeal held that:
"The finding of liability based on the mere fact of the SAPS issuing firearm to a police officer, amounts to imposition of strict liability which is impermissible. For liability to arise under such circumstances there must be evidence that the police officer in question, was for one reason or the other, known to be likely to endanger other people's s lives by being placed in possession of a firearm, and despite this he or she nevertheless was issued with a firearm or permitted to continue possessing it. Such was the situation in F, where the police officer was retained in the employ of SAPS as a detective despite previous criminal convictions".
In the matter of Minister of Police v Rabie [6] the Supreme Court of Appeal held that:
"it seems that an act done by a servant solely for his own interest and purposes, although occasioned by his employment, may fall outside the course and scope of his employment, and in deciding whether an act by the servant does so fall, some reverence is to be made to the servant's intention (cf Estate van Der Bijl v Swanepoel 1927 AD 141 at 150). The test is in this regard subjective. On the other hand, if there is nonetheless a sufficient close link between the servant's acts for his own interest and purpose and the business of his master, the master may yet be liable. This is an objectives test."'
2020 JDR 0157 p4
Mavundla J
The Constitutional Court in the case of K v Minster of Safety & Security [7] adopted the test laid down in the Rabie case. The Constitutional Court through O'Regan J correctly held when it stated the test as follows:
The approach makes it clear that there are two questions to be asked. The test is whether the wrongful acts were done solely for the purposes of the employee. This question requires a subjective consideration of the employee's state of mind and is purely factual question. Even if it is answered in the affirmative, however; the employer may nevertheless be liable vicariously if the second question, an objective one, is...
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