Minister of Law and Order v Ngobo

• Jurisdiction: South Africa
• Judge: Corbett CJ, Kumleben JA, Eksteen JA, Howie AJA and Kriegler AJA
• Judgment Date: 28 September 1992
• Hearing Date: 03 September 1992
• Court: Appellate Division

Kumleben JA:

The fatal shooting of Abednego Buthise Ngobo by a police constable during the early hours of the morning of 19 April 1986 gave rise to the present dispute. Initially there were multiple plaintiffs and H defendants. However, before and during the trial certain parties to the action fell away. In the result the mother of the deceased was the sole plaintiff, now the respondent, and the Minister of Law and Order the remaining defendant, the present appellant. The respondent's claim was for damages, based upon loss of support as a result of the death of her son, for which she alleged the appellant was vicariously liable. The trial I Court, Kühn J sitting in the Cape Provincial Division, upheld her claim and ordered the appellant to pay damages in an amount of R26 350 with interest; and to pay costs, restricted to those incurred in the employment of one counsel. With leave of the Court a quo, the appellant appeals against the substantive order granted and the respondent against the J qualification attaching to the costs order.

Kumleben JA

A On the merits two men, Messrs Spayire and Fika, gave evidence for the respondent. Two police officers, Colonel Burger and Captain Koeglenberg, testified for the appellant.

During the afternoon of 18 April 1986 and that night the deceased attended a wedding celebration. After midnight he and his two companions, Spayire and Fika, were walking in Zone 4, Langa, Cape Peninsula. Two men, B Charlie and Ngili (who turned out to be police constables) approached them on foot from the opposite direction. As the two groups crossed, Fika unintentionally bumped against one of the policemen. When Fika apologised, the policeman swore at him. An argument ensued involving abusive language on both sides. At a certain stage one of the policemen, and immediately C afterwards the other, drew his .38 service revolver. Shots were fired, one of which injured the deceased. He was in due course conveyed to hospital and subsequently died. At the time of the shooting the two policemen were standing next to each other and a short distance from the deceased and his group. The eyewitnesses were unable to say which of the two assailants fired first; how many shots were discharged; which one caused the injury; D or who was responsible for that shot. However, at the pre-trial conference the appellant admitted that it was Charlie who had killed the deceased. After the shooting the two constables ran into a yard of a nearby house. Spayire, with commendable courage, followed them and asked them why they

had deserted an injured person. Their response was to threaten to shoot E him. He fetched the deceased and brought him to the house where the policemen were still present. He, and Fika who had joined them in the house, overheard the policemen arguing about who had fired the fatal shot. Fika deduced from the spent cartridge cases taken from each revolver that F Charlie had fired three shots and Ngili two, five shots in all. The policemen said they were going to the police station at Langa. Standing orders required them to report immediately the use of an issued fire arm whenever shots were discharged. When they arrived at the police station Spayire and Fika were already there. At this stage they learned for the first time that their assailants were policemen. Captain Koeglenberg was G summoned to conduct an impartial administrative enquiry into the shooting. This is routine procedure whenever a policeman uses a fire arm whether or not he was on duty at the time. The captain arrived at the Langa police station at 04:00.

The facts thus far recounted were common cause or undisputed. The H question of intoxication is less clear. Fika said in his evidence-in-chief that both policemen were 'drunk' in that they were 'stammering when they talked' at the house and apparently also at the police station. Under cross-examination this assertion was not challenged nor was he ever asked whether there were any other indications of intoxication. Captain Koeglenberg said that both policemen appeared to him to be sober when he saw them at 04:00. This evidence is not necessarily contradictory. It is I not clear for how long the four of them were at the police station before the captain arrived or whether, according to Fika, they were still 'drunk' at 04:00. As regards the condition of the eyewitnesses, Fika said that he was at the wedding celebration from about 17:00 until after midnight, during which period he drank sorghum beer, malt beer (six or seven J glasses) and

Kumleben JA

A brandy. He also had some more beer at the home of a friend before the encounter with the policemen. Spayire said that he also drank beer with this friend but - for an unexplained reason - not at the celebration which he too attended. Apart from this direct evidence, the occurrence itself strongly suggests that some, if not all, of the participants were to an extent under the influence of liquor. There is no other reasonable B explanation for such a trivial incident causing such a wrangle or for the irrational behaviour on the part of the policemen.

The two constables, members of the uniform branch of the South African Police, were stationed at Guguletu, Cape Peninsula. The incident took place in an area where they would not ordinarily have carried out police C work when on duty. In fact they were off duty at the time and not in uniform. At no stage did they announce, or otherwise disclose, that they were policemen. They did not attempt to effect an arrest or purport to be acting in their official capacity. Their use of fire arms, one need hardly say, was wholly unjustified. The revolver each possessed was issued for D his protection and use during the course of official duties. Before a subordinate is thus armed an officer takes into account his record and makes suitable enquiries as to his fitness to be entrusted with a fire arm. Both policemen were authorised to possess a service revolver. (In the case of one of them, Charlie, a number of contraventions of the police disciplinary code were on record but both witnesses for the appellant said E that there were no grounds for not issuing him with a fire arm.) Due to civil unrest in certain townships and several attacks upon the lives of policemen when off duty, a decision was taken to allow a policeman to retain for his protection the revolver issued to him, notwithstanding the fact that he was no longer on duty.

F In argument before us counsel for the respondent, Mr Veldhuizen, supported the conclusion that the appellant was vicariously liable, firstly, with reference to the actual shooting of the deceased; and, secondly, on the ground that Ngili failed to prevent his colleague from firing the fatal shot. Thus an act or, alternatively, an omission is relied upon. The trial Court based its decision on the first ground with G particular reference to what was said in the majority judgment in the case of Minister of Police v Rabie 1986 (1) SA 117 (A).

In a brief review of the law on this subject prior to Rabie's case two early decisions of this Court serve as a useful starting point: in fact, to judge from their frequent citation in subsequent cases, they appear as H lodestars in this firmament. In Mkize v Martens 1914 AD 382 at 390 Innes JA, after a discussion of the views of our common law writers and other authorities on vicarious liability, adopted the principle that:

'(A) master is answerable for the torts of his servant committed in the course of his employment, bearing in mind that an act done by a servant solely for his own interests and purposes, and outside his authority, is I not done in the course of his employment, even though it may have been done during his employment.'

(In this quoted passage, and in others to follow, I have italicised for emphasis.) In Estate Van der Byl v Swanepoel 1927 AD 141 the test was stated to be whether the servant was 'engaged in the business of his master' (per De Villiers JA at 152), and this requirement was thus J explained by Wessels JA at 147:

Kumleben JA

A 'It is clear therefore that this Court in applying the general principle that a master is liable for the torts of his servant acting within the scope of his employment has taken the extended view of the master's liability to third parties (rather) than the narrower one which would confine his liability strictly to acts done within the instructions or necessarily incidental thereto.'

The critical consideration is therefore whether the wrongdoer was engaged B in the affairs or business of his employer. (I shall refer to it as the 'standard test' or 'general principle'.) It has been consistently recognised and applied, though - since it lacks exactitude - with difficulty when the facts are close to the borderline.

The problem of application presents itself particularly in what have become known as 'deviation cases': instances in which an employee whilst C in a general sense still engaged in his official duties deviates therefrom and commits a delict. South African Railways and Harbours v Marais 1950 (4) SA 610 (A) and African Guarantee & Indemnity Co Ltd v Minister of Justice 1959 (2) SA 437 (A) are perhaps the best known examples of such cases. The former case involved an engine driver who, acting contrary to D instructions, allowed a passenger to travel in the locomotive. As a result he was killed. On appeal the decision allowing his widow to sue in forma pauperis was reversed. At 617B-D Watermeyer CJ pointed out that

'the test is not whether the act or omission complained of occurred whilst the servant was engaged in the affairs of his master but whether it constituted a negligent performance of the work entrusted to the servant. E The act or omission may occur whilst the servant is engaged in the affairs of his master and yet the master may not be liable. For instance a servant may, whilst...