Ayinkamiye v Minister of Police and Others (76802/2010) [2013] ZAGPPHC 501 (4 December 2013)

REPUBLIC OF SOUTH AFRICA

IN THE GAUTENG DIVISION OF THE HIGH COURT OF SOUTH AFRICA,

PRETORIA

CASE NO: 76802/2010

DATE: 4 DECEMBER 2013

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

In the matter between:

AYINKAMIYE CHARLOTTE……………………………………………..PLAINTIFF

and

MINISTER OF POLICE………………………………………………1st DEFENDANT

KEKANA MADIMETJA JOEL………………………………………2nd DEFENDANT

MASINGA GODFREY………………………………………………..3rd DEFENDANT

JUDGMENT

HIEMSTRA AJ

[1] The plaintiff is an 84-year old female citizen of Rwanda. The plaintiff and her family fled from Rwanda in 1994 because of the

notorious genocide in that country. They travelled to the Democratic Republic of the Congo and from there to Mozambique. They settled in 2006 in South Africa as refugees and obtained asylum seeker permits. She was accompanied by her daughter and her daughter’s husband and the son of her sister whom she had adopted at the age of two, Paul Ndayambaje (Paul). Paul had been born out of wedlock and the whereabouts of his father was unknown.

[2] The plaintiff submitted in an affidavit that in terms of customary law in Rwanda and other African states, if a brother or a sister dies, and his or her children are left without parents, his or her closest relative is obliged to adopt the children. There are no formalities for such adoption. This evidence was confirmed by the expert evidence of Prof J.C. Bekker, a specialist in customary law. Counsel for the defendant, Adv. S.J. Coetzee did not dispute this evidence.

[3] Although the defendants disputed it in the pleadings, it was not contested during the trial that Paul had supported the plaintiff until his death on 2 November 2009. According to the plaintiff, Paul had given her about R5 000 per month. He worked as a hawker. Paul’s best friend, Vincent Raul, also a Rwandan citizen, confirmed this evidence and said that Paul had often given him money to take to his adopted mother. The sums varied, but he said it was between R4 500 and R5 500 per month. In total he had handed about R30 000 to the plaintiff.

[4] Counsel for the first defendant, Adv. S.J. Coetzee, fairly and properly con­ceded that Paul, under the circumstances, owed the plaintiff a duty of support.

He referred to the judgment in Paixao & Another v Road Accident Fund 2012 (6) SA 377 (SCA) which deals extensively with the scope of the breadwinner’s duty of support.

[5] The second and third defendants were police officers in the employ of the South African Police Service (SAPS). The plaintiff alleged that they had shot and killed Paul on 2 November 2009 while acting within the course and scope of their employment. No evidence was led at the trial regarding the shooting incident. Instead, the parties referred the court to the record of criminal pro­ceedings in which the second and third defendants were charged and con­victed of the murder of Paul and related charges. They were each sentenced to 10 years’ imprisonment.

[6] The only remaining issue is the question whether the Minister of Police is vicariously liable for the wrongful act of the second and third respondents. The second and third defendants were not on duty at the time of the incident and were not in the process of performing any duties as policemen.

[7] By agreement between the parties, I made an order in terms of Rule 33(4) for the separation of the merits and quantum of damages.

VICARIOUIS LIABILITY IN OUR LAW

[8] There are two situations in which vicarious liability arises. The first is when an employee commits the delict while going about the employer’s business. The other is where the wrongdoing takes place outside the course and scope of employment. These are known as “deviation cases”. The present case is a typical deviation case.

[9] In K v Minister of Safety & Security [2005] ZACC 8; 2005 (6) SA 419 (CC), O’Reagan J dealt with the common law principles of vicarious liability and the development of this liability in the constitutional era. She said that the general principle of vicarious liability under common law holds that an employer is responsible for the wrongs committed by an employee during the course and scope of em­ployment. As long as the employee is acting within the course and scope of his or her duties, or is engaged with the affairs of his or her master, the employer will be liable. She dealt extensively with a number of judgments in the pre-constitutional era, such as Feldman v Mail 1945 AD 733 where Water- meyer CJ at 742 captured the test for vicarious liability where an employee had deviated from his normal duties as employee as follows:

“If an unfaithful servant, instead of devoting his time to his master’s service, follows a pursuit

of his own, a variety of situations may arise having different legal consequences.

(a) If he abandons his master’s work entirely in order to devote his time to his own affairs

then his master may or may not, according to the circumstances, be liable for harm which he causes to third parties. If the servant’s

abandonment of his master’s work amounts to mismanagement of it or negligence in its performance and is, in itself, the cause of harm to third parties, then the master will naturally be legally responsible for that harm; ... If, on the other hand, the harm to a third party is not caused by the servant’s abandonment of his master’s work but by his activities in his own affairs,

unconnected to those of his master, then the master will not be responsible.

(b) If he does not abandon his master’s work entirely, but continues partially to do it and at

the same time to devote his attention to his own affairs, then the master is legally responsible for the harm caused to a third party which may fairly, in a substantial degree, be attributed to an improper execution by the servant of his master’s work, and not entirely to an improper management by the servant of his own affairs.”

[9] The learned Chief Justice said at 741:

“…a master who does his work by the hand of a servant creates the risk of harm to others if the servant should prove to be negligent of inefficient or untrustworthy; that, because he has created this risk for his own ends he is under a duty to ensure that no one is injured by the servant’s improper conduct or negligence in carrying out his work.”

[10] In the same matter, Tindall JA formulated the approach differently. He said the following at 756-7:

“In my view the test to be applied is whether the circumstances of the particular case show that the servant s digression is so great in respect of space and time that it cannot reasonably be held that he is still exercising the functions to which he was appointed; if this is the case, the master is not liable. It seems to me not practicable to formulate the test in more precise terms; I can see no escape from the conclusion that ultimately the question resolves itself into one of degree and in each particular case a matter of degree will determine whether the servant can be said to have ceased to exercise the functions to which he was appointed.”

[11] In Minister of Police v Rabie 1986 (1) SA 117 (A) a mechanic employed by the police force, in plain clothes and not on duty at the time, acting in pur­suance of his own interests, wrongfully arrested, assaulted and detained the plaintiff. He had, however, identified himself as a police officer to the plaintiff, taken him to the police station, filled out a docket and wrongfully charged the plaintiff with housebreaking. On holding the Minister of Police liable, Jansen JA, for the majority of the Court, formulated a test at 134:

“It seems clear that an act done by a servant solely for his own interests and purposes, although occasioned by his employment, may

fall outside the course or scope of his employment, and that in deciding whether an act by the servant, does so fall, some reference

is to made to the servant’s intention. The test is in this regard subjective. On the other hand, if there is nevertheless a sufficiently close link between the servant’s acts for his own interests and purposes and the business of his master, the mater may yet be liable. This is an objective test. ”

This test has been followed in many subsequent cases and, as shown later, it found favour in the Constitutional Court.

[12] Although there are many variations to these tests, it is clear that that even at common law, it was not always sufficient for and employer to show that the employee had acted in his own interests. The principles of vicarious liability have further evolved under the Constitution, especially in respect of the Police Service. Section 205(3) of the Constitution provides that:

“The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.”

The preamble to the South African Police Service Act 68 of 1995 provides as follows:

“WHERAS ...

AND WHEREAS there is a need to provide a police service throughout the national territory to—

(a) Ensure the safety and security of all persons and property in the national territory;

(b) Uphold and safeguard the fundamental rights of every person as guaranteed by

Chapter 3 of the Constitution; ...”

There is therefore a constitutional duty on the South African Police Service and its officials to protect the lives and property of inhabitants of the Republic. Failure to do so constitutes ad breach of their duties.

[13] In F v Minister of Safety & Security and Another 2012 (1) SA 536 (CC) at 540, Mogeng CJ set out the basic premise of the vicarious liability of the Min­ister of Police as follows:

“[2] In the determination of that question, the State’s constitutional obligations to respect, protect and promote the citizen's right to dignity, and to freedom and security of the person would have to be taken into account. Equally relevant is the State's

establishment of a police service for the efficient execution of its constitutional obligations to prevent, combat and investigate crime, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.

[3] The trust that the public is entitled to repose in the police also has a critical role to play in the determination of the Minister's

vicarious liability in this matter."

[14] The Court approved the test formulated in Rabie, supra, and further developed in K v Minister of Safety & Security 2005 (SA) 419 (CC). O’Regan J said:

“The approach (in Rabie) makes it clear that there are two questions to be asked. The first is whether the wrongful acts were done solely for the purposes of the employee. This question requires a subjective 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. The question is whether, even though the acts done have been solely for the purpose of the 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 should consider the need to give effect to the spirit, purport and objects of the Bill of Rights.”

[15] Mogoeng CJ said in paragraph [50] in K that

“[t]he pivotal enquiry is therefore whether 'there was a close connection between the wrongful conduct of the policemen and the nature of their employment. That is the question that must be asked in determining the State’s vicarious liability in this matter.”

[16] Mr Coetzee, also in this respect, conceded that in terms of the law set out above, the Minister is vicariously liable. This concession is justified and it is the only conclusion that can be reached. The connection between the wrongful act of the second and third respondents is as closely related to their duties as police officers as that of the police officers in Rabie, K and F.

[17] I therefore find that the first defendant is vicariously liable for whatever damages the plaintiff may prove she had suffered. I also find that the second and third respondents are personally liable for whatever damages that may be proven in the resumption of the trial.

In the result I make the following order:

1. The defendants are liable jointly and severally for whatever damages may be proven.

2. The question of the quantum of damages is postponed sine die.

3. The respondents are jointly and severally ordered to pay the plaintiff’s costs.

J. HIEMSTRA

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

Date heard: 12 November 2012

Date of judgment: 4 December 2012

Counsel for the plaintiff: Adv A. Granova

Attorney for the plaintiff: Gihana Kennedy Attorneys

Counsel for the defendants: Adv J.S. Coetzee

Attorney for the defendants: The State Attorney

(J. Meier) Ref: 7835/2010/Z49