Mkhatswa v Minister of Defence

JurisdictionSouth Africa
JudgeSmalberger JA, Vivier JA, Howie JA, Streicher JA, Melunsky AJA
Judgment Date29 November 1999
Citation2000 (1) SA 1104 (SCA)
Docket Number413/97
Hearing Date19 November 1999
CounselA Kemack (with him JMA Cane) for the appellant JI Du Toit for the respondent
CourtSupreme Court of Appeal

Smalberger JA:

[1] It is common cause that in the early hours of 25 May 1992 the appellant was forcibly removed from his home in Tamboville by F members of the then South African Defence Force (the Defence Force) who were off duty at the time. He was taken to a nearby road where he was severely assaulted. In the course of the assault he was struck in the face with a rifle butt resulting in the loss of his right eye.

[2] Arising from this incident the appellant (as plaintiff) G instituted action against the respondent (as defendant) in the Witwatersrand Local Division for damages in the sum of R186 050. (For convenience' sake I shall continue to refer to the parties as they were known at the trial.) The matter came before Gautschi AJ. With leave of the Court the trial proceeded on the issue of liability only. At its conclusion the learned Acting Judge found for the plaintiff, H holding that the defendant was liable for any damages suffered by him as a result of the assault.

[3] The defendant sought and was granted leave to appeal to the Full Court of the Witwatersrand Local Division. The appeal succeeded and the trial Court's order was altered to one dismissing the plaintiff's claim with costs. The judgment is reported - see Minister of I Defence v Mkhatswa [1997] 3 B All SA 376 (W). The plaintiff was subsequently granted special leave to appeal to this Court.

[4] In May 1992, 21 SA Infantry Battalion was stationed at Lenz military base on the West Rand. Its ranks included D company, a platoon of troops mounted on horseback and motor cycles, and A company, a J

Smalberger JA

platoon of guards. The members of D company were all permanent force A members with experience ranging from four to seven years. Many of them were married with children and resided in established areas.

[5] At that time the Defence Force's Group 16 commanded a certain geographical area on the East Rand. Incorporated within its area were, B inter alia, the township of Wattville, the adjoining informal settlement of Tamboville and a military base known as 'Apex'. Tamboville was situated approximately five kilometres from Apex base as the crow flies.

[6] Because of prevailing discontent in certain communities, some areas under the command of Group 16 had been declared unrest areas. C Wattville and Tamboville were not included amongst these. Group 16 did not have soldiers at its disposal to deploy in these unrest areas. A and D companies were drafted for this purpose. The function of D company was to patrol the affected areas on horseback and motor cycles in collaboration with members of the South African Police. Patrols were D confined to daytime because of the heightened danger associated with night patrols.

[7] During their deployment in these areas A and D companies (together comprising approximately 70 soldiers) were stationed and billeted at Apex base. It was a small base and provided the only E accommodation available for soldiers operating within the area of Group 16. The base was used infrequently for operational purposes and served primarily as the headquarters of a commando.

[8] The members of D company were initially due to complete their operational duties on Friday, 22 May 1992, and thereafter to F return to Lenz base. However, because of a further need for their services over the weekend, their spell of duty was extended to the Sunday. In order to pacify the disgruntled members of D company, and partly to compensate them for the delayed return to their base and, more significantly, their homes, it was arranged that certain allowances due to them would be paid on the Saturday rather than only G after their return. This was duly done.

[9] D company returned to Apex base on Sunday, 24 May 1992, at approximately 16:00 upon completion of its patrol duties. The rifles which had been issued to its members were returned and locked away. The H only soldiers at the base left in possession of rifles were the six guards who were due to perform rotational guard duty that night.

[10] After having changed and eaten, 17 members of D company left Apex base in different groups. There were no canteen facilities available at Apex base, the canteen having been closed temporarily I because of theft. They proceeded on foot to a shebeen in Wattville, not far from its border with Tamboville. Some stayed there longer than others. When the last of them (a group of nine) departed they were somewhat intoxicated. They decided to take a short-cut to Apex base through Tamboville. While on their way they were confronted by residents of Tamboville J

Smalberger JA

patrolling the area. An altercation ensued, A ending up in a fight. The soldiers came off second-best and scattered and fled the scene.

[11] There is uncertainty concerning the precise events that occurred subsequently. What has been established, however, is that rifleman Lawerlot returned to Apex base where he unlawfully took possession of a B Samil 50 military truck (the Samil 50) and a number of army issue rifles. He then went back to Tamboville apparently bent on revenge. En route he picked up some of his fellow soldiers who had been involved in the prior clash. In the course of the ensuing foray several innocent persons were dragged from their homes and the assault upon the plaintiff took place. None of these persons had been involved C in, or been connected with, the earlier confrontation.

[12] On the day of the assault D company's commander, Captain Rademeyer, was on leave. His second in command was Second Lieutenant Botha. He was only 18 years of age. Because of his lack of experience, D Warrant Officer Scheepers was appointed acting company commander in Rademeyer's absence. Scheepers left Apex base at approximately 19:00, leaving Botha in charge during the period when the relevant events occurred.

[13] The absence at the time of canteen facilities, an important E feature of army life, has already been mentioned. It is common cause that the perimeter fence of Apex base was in a dilapidated state making it possible for soldiers to leave and return to the base on foot without having to go past the sentries at the main gate. Colonel De Bruin, the commanding officer of Group 16, conceded in evidence that at F the relevant time there were deficiencies in the command and control structures at the base. According to Botha 'things were very lax at Apex base'. No clear guidelines in respect of discipline and leave were issued to members of D company in relation to their stay there. This led to confusion with regard to whether they were entitled to leave the base after going off duty. As permanent force members they G could do so at Lenz base. They were apparently under the impression that this situation also applied at Apex base. Scheepers was of the same view. So too was Colonel Scholtz, who presided over the later Defence Force inquiry into the events of the night in question. De Bruin, Botha and Lieutenant-Colonel Smit...

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26 practice notes
  • Steenkamp NO v Provincial Tender Board, Eastern Cape
    • South Africa
    • Invalid date
    ...of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) ([2002] 3 All SA 741): referred to Mkhatswa v Minister of Defence 2000 (1) SA 1104 (SCA) ([2000] 1 All SA 188): referred to D National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 ......
  • Bureaucratic bungling, deliberate misconduct and claims for pure economic loss in the tender process
    • South Africa
    • Juta South Africa Mercantile Law Journal No. , September 2019
    • 25 d6 Maio d6 2019
    ...normativefactors they had considered, Langa CJ and O’Regan J were compelled to89Idem para 42. See also Mkhatswa v Minister of Defence 2000 (1) SA 1104 (SCA); VE vMinister of Safety & Security [2001] 3 All SA 469 (T) 475.90Steenkamp CC supra note 5 para 47.91Idem para 94.BUREAUCRATIC BUNGLIN......
  • Steenkamp NO v Provincial Tender Board, Eastern Cape
    • South Africa
    • Constitutional Court
    • 28 d4 Setembro d4 2006
    ...See above n42 and n43. [48] Van Duivenboden above n34 in para [20]. [49] See above n42 and n43. [50] Mkhatswa v Minister of Defence 2000 (1) SA 1104 (SCA) ([2000] 1 All SA 188; Kruger above n38; Van Duivenboden above n34 in para [12]; Minister of Law and Order v Kadir 1995 (1) SA 303 (A) at......
  • Vicarious liability of the state for the abuse and misuse of firearms by police officers
    • South Africa
    • Sabinet Lesotho Law Journal No. 25-2, May 2017
    • 31 d3 Maio d3 2017
    ...by the soldiers and for the negligence of the sentries acting in the course of their 22 [2007] 4 All SA 697 (SCA), 701 para [12]. 23 2000 (1) SA 1104 (SCA). 8 LLJ Vol. 25 No. 2 employment. The appellant had argued that the respondents had unreasonably failed to prevent the unauthorized depa......
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20 cases
  • Steenkamp NO v Provincial Tender Board, Eastern Cape
    • South Africa
    • Invalid date
    ...of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) ([2002] 3 All SA 741): referred to Mkhatswa v Minister of Defence 2000 (1) SA 1104 (SCA) ([2000] 1 All SA 188): referred to D National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 ......
  • Steenkamp NO v Provincial Tender Board, Eastern Cape
    • South Africa
    • Constitutional Court
    • 28 d4 Setembro d4 2006
    ...See above n42 and n43. [48] Van Duivenboden above n34 in para [20]. [49] See above n42 and n43. [50] Mkhatswa v Minister of Defence 2000 (1) SA 1104 (SCA) ([2000] 1 All SA 188; Kruger above n38; Van Duivenboden above n34 in para [12]; Minister of Law and Order v Kadir 1995 (1) SA 303 (A) at......
  • Botha v Minister van Veiligheid en Sekuriteit
    • South Africa
    • Invalid date
    ...3 B All SA 741): toegepas/applied Minister van Polisie v Ewels 1975 (3) SA 590 (A): toegepas/applied Mkhatswa v Minister of Defence 2000 (1) SA 1104 (HHA): dictum in para [23] op/at 1112H - I toegepas/applied C Mukheiber v Raath and Another 1999 (3) SA 1065 (HHA): Sea Harvest Corporation (P......
  • Minister of Safety and Security v Hamilton
    • South Africa
    • Invalid date
    ...3 B All SA 741): applied Minister van Polisie v Ewels 1975 (3) SA 590 (A): dictum at 597G applied Mkhatswa v Minister of Defence 2000 (1) SA 1104 (SCA): referred Mostert v Cape Town City Council 2001 (1) SA 105 (SCA): referred to Olitzki Property Holdings v State Tender Board and Another 20......
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6 books & journal articles
  • Bureaucratic bungling, deliberate misconduct and claims for pure economic loss in the tender process
    • South Africa
    • Juta South Africa Mercantile Law Journal No. , September 2019
    • 25 d6 Maio d6 2019
    ...normativefactors they had considered, Langa CJ and O’Regan J were compelled to89Idem para 42. See also Mkhatswa v Minister of Defence 2000 (1) SA 1104 (SCA); VE vMinister of Safety & Security [2001] 3 All SA 469 (T) 475.90Steenkamp CC supra note 5 para 47.91Idem para 94.BUREAUCRATIC BUNGLIN......
  • Vicarious liability of the state for the abuse and misuse of firearms by police officers
    • South Africa
    • Sabinet Lesotho Law Journal No. 25-2, May 2017
    • 31 d3 Maio d3 2017
    ...by the soldiers and for the negligence of the sentries acting in the course of their 22 [2007] 4 All SA 697 (SCA), 701 para [12]. 23 2000 (1) SA 1104 (SCA). 8 LLJ Vol. 25 No. 2 employment. The appellant had argued that the respondents had unreasonably failed to prevent the unauthorized depa......
  • Getting wrongfulness right: A Ciceronian attempt
    • South Africa
    • Juta Acta Juridica No. , August 2019
    • 29 d3 Maio d3 2019
    ...(SCA) at 1056E-G. 11 P Q R Boberg The Law of Delict; vol 1: Aquilian Liability (1984) 146. 12 Contrast Mkhatswa v Minister of Defence 2000 (1) SA 1104 (SCA) at 1111 para 18 ('The question of negligence is the logical starting point to any enquiry into the defendant's liability, for without ......
  • Gedagtes oor die rol van onregmatigheid, nalatigheid en juridiese kousaliteit in die deliktereg
    • South Africa
    • Juta Acta Juridica No. , August 2019
    • 29 d3 Maio d3 2019
    ...is.' 22 Noot 8 op 136e-f; sien ook 135h. Hierdie foutiewe standpunt word later deur die appèlhof in Mkhatswa v Minister of Defence 2000 (1) SA 1104 (SCA) op 1111F by monde van Smalberger AR herhaal: 'The question of negligence (ie the failure to comply with the standard of conduct of a reas......
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