Minister of Law and Order v Ngobo

• Jurisdiction: South Africa

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

1992 (4) SA p822

Citation	1992 (4) SA 822 (A)
Court	Appellate Division
Judge	Corbett CJ, Kumleben JA, Eksteen JA, Howie AJA and Kriegler AJA
Heard	September 3, 1992
Judgment	September 28, 1992

Flynote : Sleutelwoorde

B Negligence — Liability for — Vicarious liability — Liability of employer for delictual acts of employee — Test for — Standard test, viz whether wrongdoer engaged in affairs or business of employer when delict committed, adequately serving interests of society — No sound reason for replacing it with test based on creation of risk.

C Negligence — Liability for — Vicarious liability — Of Minister of Law and Order for delictual acts of policemen — Off-duty policeman having, after late-night altercation with strangers, shot dead man with police-issue firearm — Policeman not at any stage during incident D purporting to be carrying out police functions and in no sense engaged in affairs of appellant — In circumstances no need for policeman to have resorted to use of firearm — Fact that policeman authorised to retain firearm while off duty not in itself enough to render appellant vicariously liable — Appellant in circumstances not vicariously liable.

Headnote : Kopnota

E The respondent instituted an action for damages against the appellant in a Provincial Division, based on loss of support as a result of the death of her son, for which she alleged the appellant was vicariously liable. The trial Court upheld the respondent's claim but granted the appellant leave to appeal against its order. It appeared from the evidence that the deceased and two companions had, late at night and after attending a wedding reception, been involved in a street altercation with two off duty F police constables, one N and one C. At some stage both policemen had drawn their service revolvers and fired shots. It was later admitted by the appellant that C had fired the shot that killed the deceased. Both constables had been off duty and in plain clothes at the time. At no stage had they announced or otherwise disclosed that they were policemen, nor had they attempted to effect an arrest or purported to be acting in their official capacity. Both the policemen had been authorised to retain while off duty the firearms issued to them. Counsel for the respondent argued G that the appellant was vicariously liable, firstly, with reference to the actual shooting of the deceased, and secondly, on the ground that N had failed to prevent C from firing the fatal shot. It was further contended on behalf of the respondent that the traditional application of the standard test for the vicarious liability of an employer (viz that the employer was liable for the delictual acts of the employee where the employee had been engaged in the affairs or business of the employer) had been considerably broadened by the Appellate Division in the case of H Minister of Police v Rabie 1986 (1) SA 117 (A). It was argued that in the light of this decision and considerations of social policy the Court was obliged to accept the creation of risk as the basis for the vicarious liability of an employer.

Held, that, in the circumstances of the present case, there could be no doubt that, on the basis of the standard test, the appellant ought not to have been held vicariously liable on the first ground, that is, for C's wrongful act: the constables had not been on duty; they had at no stage purported to be carrying out any police function; they had unnecessarily I resorted to the use of firearms in the course of an equally unnecessary altercation with strangers; and they had in no sense been engaged in the affairs of the appellant (despite the fact that they had used the revolvers they had been authorised to retain, which factor, though relevant, was not in itself enough to satisfy the standard test).

Held, further, as to the argument that the standard test had to be replaced with one based on the creation of risk, that the standard test J adequately served the interests of

1992 (4) SA p823

A society by maintaining a balance between imputing liability without fault, which ran counter to general legal principle, and the need to make amends to an injured person who might otherwise not be recompensed.

Held, further, that whilst one could not gainsay the difficulty of applying the standard test in certain cases (particularly in what have become known as the 'deviation cases', in which an employee, whilst in a general sense still engaged in his official duties, deviated therefrom and committed a delict), the indeterminacy of the elements of the proposed alternatives suggested that their adoption would not make the task of B determining liability any easier.

Held, further, that in the circumstances there was no sound reason for replacing a generally accepted principle with a controversial and untried one such as the 'creation of risk' principle: whatever direct liability could in certain circumstances attach to an employer as a result of a risk created by him, this consideration was not a relevant one to be taken into C account in order to decide whether the employer was vicariously liable.

Held, further, that insofar as Minister of Police v Rabie could be said to have replaced the standard test with one based on the creation of risk, it had been wrongly decided.

Held, further, as to the argument that N's failure to prevent the fatal shot had rendered the appellant liable, that the respondent had failed to prove that, assuming that N ought in law to have acted to prevent the shooting and had been negligent in not attempting to do so, he would have D successfully averted the fatal consequences: in other words, the causative element of the alleged delict had not been proved.

Held, accordingly, that the respondent had failed to prove either of her two causes of action. Appeal allowed.

The decision in the Cape Provincial Division in Ngobo v Minister of Law and Order reversed. E

Case Information

Appeal from a decision in the Cape Provincial Division (Kühn J). The facts appear from the judgment of Kumleben JA.

H P Viljoen SC for the appellant referred to the following authorities (the heads of argument having been drawn up by D A J Uijs): Mkize v Martens 1914 AD 382 at 390, 393-4, 400; Estate Van der Byl v Swanepoel 1927 AD 141 at 154; Union Government v Hawkins 1944 AD 557; Feldman (Pty) F Ltd v Mall 1945 AD 733; African Guarantee & Indemnity Co Ltd v Minister of Justice 1959 (2) SA 437 (A); S A Railways & Harbours v Marais 1950 (4) SA 610 (A); Carter & Co (Pty) Ltd v McDonald 1955 (1) SA 202 (A); H K Manufacturing Co (Pty) Ltd v Sodowitz 1965 (3) SA 328 (C); Minister van Polisie en 'n Ander v Gamble en 'n Ander 1979 (4) SA 759 (A) at 767B; G Deatons v Flew (1949) 79 CLR 370; Minister of Police v Rabie 1986 (1) SA 117 (A); Halliwell v Johannesburg Municipal Council 1912 AD 659; Cape Town Municipality v Clohessy 1922 AD 4 at 7; Witham v Minister of Home Affairs 1989 (1) SA 116 (ZH); Herschel v Mrupe 1954 (3) SA 464 (A); Minister van Polisie v Ewels 1975 (3) SA 590 (A); Van Vuuren v Sam 1972 (2) SA 633 (A); H Groenewald v Snyders 1966 (3) SA 237 (A); Khan and Another v Padayachy 1971 (3) SA 877 (W); Ngubane v SA Transport Services 1991 (1) SA 756 (A); Oosthuizen v Stanley 1938 AD 332 at 331.

A H Veldhuizen (with him I J Muller) for the respondents referred to the following authorities: Mhlongo and Another NO v Minister of Police 1978 (2) SA 551 (A) at 566E-F, 567B-E; Van der Merwe and Olivier Die I Onregmatige Daad in die Suid-Afrikaanse Reg 5th ed at 505, 506; Mkize v Martins 1914 AD 382; Estate' Van der Byl v Swanepoel 1927 AD 141; Union Government v Hawkins 1944 AD 557; Winfield and Jolowicz On Tort 12th ed at 602-3; Neethling, Potgieter and Visser The Law of Delict at 302-3, 316; Feldman (Pty) Ltd v Mall 1945 AD 733 at 741, 787; Susan Scott Middellike J Aanspreeklikheid in die Suid-Afrikaanse Reg at viii, 48;

1992 (4) SA p824

A McKerron The Law of Delict 7th ed at 90; Dendy 'When the Force Frolics: A South African History of State Liability for the Delicts of the Police' (1989) Acta Juridica at 24-43; American Jurisprudence 2nd ed vol 58 at 456; Union Government (Minister of Justice) v Thorne 1930 AD 47; Minister van Polisie v Gamble en 'n Ander 1979 (4) SA 759 (A); Minister of Police v B Rabie 1986 (1) SA 117 (A); Martin (1989) 52 THRHR 273; M Stranex (1986) 103 SALJ 190; J C Van der Walt (1988) 51 THRHR 515; D S Hansson 1989 Acta Juridica at 118; Mhlongo and Another NO v Minister of Police 1978 (2) SA 551 (A) at 570A-D; Du Plessis v Faul en 'n Ander 1985 (2) SA 85 (NC); Roman v Pietersen 1990 (3) SA 350 (C); Minister van Polisie v Ewels 1975 (3) SA 590 (A); R v Bailey 1920 CPD 193 at 195-6; Mazeka v Minister of C Justice 1956 (1) SA 312 (A) at 317F-G; Rabie v Minister of Police and Another 1984 (1) SA 786 (W) at 791F; Joubert (ed) The Law of South Africa vol 20 para 257; Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 (4) SA 371 (D) at 384B-G; Nkumbi v Minister of Law and Order 1991 (3) SA 29 (E); Oosthuizen v Stanley 1938 AD 322 at 327-8; Van D Vuuren v Sam 1972 (2) SA 633 (A) at 635E; Jacobs v Cape Town Municipality 1938 CPD 474 at 479; Waterson v Mayberry 1934 TPD 210 at 213; Boberg The Law of Persons at 274, 310; Khan v Padayachi 1971 (3) SA 877 (W) at 881E; Groenewald v Snyders 1966 (3) SA 237 (A) at 247A-D; Koch Damages for Lost Income at 199, 201; Peri-Urban Areas Health Board v Munarin 1965 (3) SA 367 (A) E at 376B-D; Summers v General Accident Insurance Company SA Ltd 1985 (3) SA 418 (C) at 421D; Ngubane v SA Transport Services 1991 (1) SA 756 (A) at 784C-785D; Janeke v Ras 1965 (4) SA 583 (T) at 588D-F; Erasmus v Davies 1969 (2) SA 1 (A) at 9E-G, 11E-F; Rand Townships & Smallholdings (Pty) Ltd v Griebouw 1956 (2) SA 42 (W) at 43H; De...