Minister of Safety and Security v Luiters

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Madala J, Mokgoro J, Nkabinde J, O'Regan J, Sachs J, Van Der Westhuizen J, Yacoob J and Kondile AJ
• Judgment Date: 30 November 2006
• Citation: 2007 (2) SA 106 (CC)
• Hearing Date: 17 August 2006
• Docket Number: CCT 23/06
• Counsel: W Trengove SC and R T Williams SC for the applicant. H P Viljoen SC and H M Raubenheimer SC for the respondent.
• Court: Constitutional Court

Langa CJ:

Introduction H

[1] What are the limits of the liability of the State to pay damages for the actions of the police? Mr Allister Roy Luiters, the respondent in this matter, was severely injured when he was shot in 1995 by an off-duty policeman, constable Lionel Siljeur, who was in the employ of the South African Police Services (SAPS). Mr Luiters is now a tetraplegic. The Cape High Court (the High Court) held that the I Minister of Safety and Security (the Minister), who is the applicant in this matter, was in law liable for the injuries suffered by Mr Luiters. This decision was confirmed on appeal by the Supreme Court of Appeal. This is an application by the Minister for leave to appeal against the judgment of the Supreme Court of Appeal. J

Langa CJ

Factual background A

[2] The incident occurred on Jacaranda Street in Eerste River late in the evening of 14 October 1995 while Mr Luiters was walking along in the company of two women. They were suddenly fired upon from behind by constable Siljeur, and they began to run away. Mr Luiters was, however, hit as he ran, sustaining gunshot wounds in the leg and neck. It was later established that on the same night and on Jacaranda B Street, Constable Siljeur fired at two other men, Mr Percival Makati and Mr Abram Pietersen, hitting Mr Pietersen in the back and the ankle.

The proceedings in the High Court C

[3] A civil claim for damages, instituted by Mr Luiters in the High Court against the Minister, followed. The parties, however, agreed that the Court should concern itself with the resolution of the issue of liability only and not the amount of damages to be paid. In the hearing, the High Court (per Thring J) accepted the account of events given by Mr William Davidse, who testified in support of Mr D Luiters.

[4] According to his account Mr Davidse was driving a car in the area on the night in question in the company of two passengers, Mr Warren Geldenhuys and Mr Lionel Arries. When the car turned into Jacaranda Street they saw Mr Luiters lying motionless in the street and they drove towards him. They were then confronted by Constable Siljeur. E As their car stopped, the constable, who was not in uniform and who looked nervous and bewildered, pointed the firearm he was brandishing at Mr Davidse. Mr Davidse tried for several minutes to calm him down, asking him repeatedly to lower his firearm, which the policeman eventually did. When asked what the problem was, Constable Siljeur F replied that he was looking for people who had robbed him and who had disappeared into the nearby houses. He asked whether Mr Davidse and his passengers had seen the robbers. Mr Davidse was under the impression that the policeman wanted to arrest the robbers. This he had inferred from the type of gun that Constable Siljeur was carrying, which, he was G told by Mr Arries, was of a type carried only by police officers.

[5] Constable Siljeur eventually walked away. The car then moved closer to where Mr Luiters was lying and Mr Davidse's two passengers got out of the car and went to assist Mr Luiters. Suddenly Mr Davidse heard gun shots from behind and drove off down Jacaranda Street. He H later turned the vehicle around to return to what he described as 'the danger zone'. He saw Constable Siljeur shooting at Mr Geldenhuys and Mr Arries. The two men were returning the fire and Constable Siljeur then fled. The police arrived a short while later but Constable Siljeur was at that stage nowhere to be seen. I

[6] Captain Andre Steenkamp told the Court that he was one of the police officers who arrived at the scene after the shooting. He found Mr Luiters lying motionless in the street. A second person, who had been shot in the ankle, was lying nearby. Nobody volunteered any information when Captain Steenkamp enquired from the people there who had shot J

Langa CJ

the two men. The following day Captain Steenkamp was directed to a house where he found and eventually arrested Constable Siljeur. A The latter initially denied that he was a policeman. When asked by Captain Steenkamp to hand over his service revolver, he first denied that he had it, but later retrieved it from a cupboard in the house and handed it over to Captain Steenkamp. B

[7] Captain Steenkamp further testified that in terms of the relevant police standing order [1] a police officer who has discharged a firearm is obliged to report that he or she has done so immediately. No such report was made by constable Siljeur. C

[8] The record indicates that constable Siljeur was convicted in the Parow regional court on eight counts of attempted murder and sentenced to an effective 11 years' imprisonment on account of the events of the night in question. [2] Although he was no longer in prison at the time of the High Court trial, neither the Minister nor Mr Luiters called him as a witness. D

[9] From the fact that Constable Siljeur told Mr Davidse that he wanted to arrest the robbers, the High Court concluded that, although he was off duty, Constable Siljeur had subjectively placed himself on duty at the time of the shooting and was accordingly acting in his capacity as a policeman. In the Court's view apprehending criminals E was an important police function and it was unlikely that a member of the public would attempt such activities. The Court held that the subsequent failure by the policeman to report his use of the firearm and his denial of the incident were compatible with a realisation, after the fact, that he had gone too far and wished to distance himself from the incident. It held that the Minister had not discharged the F onus to show that Constable Siljeur was in fact performing a function that took him outside the 'kader van Staatsdienaar' (cadre of civil servant) and concluded that he had acted as a servant of the State. The Minister was accordingly held to be vicariously liable for the injuries that had been inflicted on Mr Luiters. G

The proceedings in the Supreme Court of Appeal

[10] On appeal, the Supreme Court of Appeal [3] (per Navsa JA) unanimously held that in light of the judgment of this Court in K v Minister of Safety and H Security [4] the appropriate test to be applied in cases where employees had deviated from their normal duties is one that requires two questions to be asked. These questions had been formulated in K as follows: I

Langa CJ

'The first is whether the wrongful acts were done solely for the purposes of the employee. This question requires a subjective A consideration of the employee's state of mind and is a 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 answered affirmatively. That question is whether, even though the acts done have been done solely for the purpose of the B employee, there is nevertheless a sufficiently close link between the employee's acts for his own interests and the purposes and the business of the employer. This question does not raise purely factual questions, but mixed questions of fact and law. The questions of law it raises relate to what is ''sufficiently close'' to give rise to vicarious liability. It is in answering this question that a court C should consider the need to give effect to the spirit, purport and objects of the Bill of Rights.' [5]

(Footnote omitted.)

[11] Addressing the first question, the Supreme Court of Appeal considered Constable Siljeur's state of mind at the time of the shooting. Relying on the testimony given by Mr Davidse, the Court D agreed with the factual inferences drawn by the High Court and concluded that Constable Siljeur had been looking for robbers and had acted with the authority of a policeman when he approached Mr Davidse and his companions. The Court reasoned that the constable could not have been unmindful of his authority as a policeman, especially in light of the fact that he was using his service pistol. When he E approached Mr Davidse, his behaviour indicated that he was not completely certain that the occupants of the car were not, in some way, connected to the robbery. This might have been the reason why he decided to fire on the two men when they stopped to help Mr Luiters. If Constable Siljeur had merely been on a shooting spree, he would not F have been cautious in the manner in which he approached the car which was driven by Mr Davidse.

[12] The Supreme Court of Appeal rejected the suggestion by the Minister that...