Minister of Safety and Security v Sibili

• Jurisdiction: South Africa
• Judge: Ebersohn, AJ
• Judgment Date: 21 June 2003
• Docket Number: A222/02
• Court: Transkei High Court
• Hearing Date: 16 May 2003
• Citation: 2003 JDR 0595 (TkH)

Ebersohn AJ:

[1] This is an appeal against a decision by the magistrate of Umtata. I refer for the sake of convenience to the appellant as the Minister and to the respondent as the plaintiff.

[2] This appeal is about two aspects.

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[3] The first is when is a policeman on duty and when is he not on duty.

[4] The second is about post traumatic stress disorder ("PTSD") and what causes it and whether the plaintiff, after the killing of her daughter by the policeman, on the 16th April 1999, suffered from PTSD and suffered damages or not and if she did, whether the incident in which her daughter was killed by the policeman and her daughter's death, could be causally linked to and caused her PTSD.

[5] The magistrate found in favour of the plaintiff and granted judgment against the Minister in the amount of R30 000,00 "for emotional shock", R3 231,02 for burial expenses, interest and costs. The Minister noted an appeal against the whole of the judgment.

[6] According to his own evidence, the policeman, one Mbana, on the night in question, "was making a follow up on the information regarding the loss of my firearm". He was in uniform and armed with his official firearm in its holster under his trousers which firearm was issued to him by the police. His private firearm was stolen from his house a while before. He stated that he waited at the tavern where the shooting, referred to hereinafter, took place for an informer who was

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to make a report to him about the person who allegedly stole his firearm. He stated that the informer arrived and gave him a signal to the effect that the suspected thief was not in the vicinity. He testified that as he was leaving the tavern he heard somebody behind him and that this person then grabbed him and they started struggling. He stated that he recognised his attacker as a known robber who in the past robbed many policemen and that there were criminal cases pending against him and he then felt his attacker searching for his holster in which he carried his firearm and that he got the impression that this man was trying to rob him of his firearm. He stated further that he then himself pulled his firearm from its holster under his trousers and shot his attacker. He conceded that the tavern was full of people. He stated that he couldn't count the number of shots he fired but he was of the opinion that he fired 5 shots "as my finger was on the trigger." He testified that his firearm had 15 rounds in its magazine prior to the shooting.

[7] He conceded that he, as a policeman, was on duty 24 hours a day and that it was his duty to act when a crime was committed even if he was formally off duty. He stated that he regarded himself to have been on duty at the time of the shooting.

[8] The witness Zigisa Cishe gave a somewhat different account of what happened in the tavern. She testified that she accompanied the

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plaintiff's daughter Xoliswa to the tavern where Xoliswa wanted to make a telephone call from. In the tavern they met one Mduduzi Zwakala and they chatted with him for a while. She testified that she saw Mbana drinking beer at the corner in the tavern, that he was in uniform and that she saw that had a firearm with him. As they were leaving Mbana suddenly grabbed Zwakala by the collar and they started struggling. Mbana then pulled out his firearm and started shooting indiscriminately. She stated that the first bullet hit the pool table. The second bullet hit her in the thigh and she fell down. People were then fleeing in all directions and were taking cover. Mbana kept firing for a while and according to her he fired more than 10 shots.

[9] After the shooting Zwakala lay dead being shot through the neck, and Xoliswa was lying under the pool table, also shot through the neck. It is common cause that she died from her wound a short while later.

[10] The Minister denied in his plea that Mbana was on duty at the time of the shooting and accordingly denied being liable.

[11] We were referred in argument to the unreported case of Wait v The Minister of Defence, Case CA1/2001, in the Eastern Cape Division being a judgment of Pickering J.. In that case a soldier, who was to go on a patrol in the military base absented himself from the

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patrol, went elsewhere in the base where he made a lot of noise and when he was taken to task for that by the deceased the soldier got into a fight with the deceased and shot him dead. Pickering J. found that the soldier, after he absented himself from the patrol, was "on a frolic of his own" at that stage and that the Minister was not liable.

[12] It is clear that the Wait case can be distinguished on many grounds from the case before us.

[13] It is also clear that Mbana, on the facts and on his own admission, at the time of the incident was acting in the course and scope of his employment with the Minister (see, for example, Minister of Law and Order v Ngobo 1992 (4) SA 822 (A) at 827B; Minister of Police v Rabie 1986 (1) SA 117 (A)).

[14] The magistrate's finding in this regard cannot be faulted and I find that Mbana acted in the course and scope of his duty as a policeman at the time of the shooting.

[15] The question of foreseeability then arises. In most instances...