Macala v Town Council of Maokeng (15/91) [1992] ZASCA 76; 1993 (1) SA 434 (AD); [1993] 1 All SA 112 (A) (22 May 1992)

Macala v Town Council of Maokeng (15/91) [1992] ZASCA 76; 1993 (1) SA 434 (AD); [1993] 1 All SA 112 (A) (22 May 1992)

The Supreme Court of Appeal held that Mthembu, in shooting the appellant, was not acting in the course and scope of his employment with the respondent. There was no evidence, either subjectively or objectively, that his actions were connected to police work or the business of the respondent. The fact that Mthembu wore a police uniform and used an official firearm was insufficient to establish liability. The creation of risk principle, as articulated in Minister of Police v Rabie, did not extend to the circumstances of this case, where the acts were personal and unrelated to municipal duties. Accordingly, the respondent was not vicariously liable for the damages suffered by the appellant.

Citation
[1992] ZASCA 76
Parties
Appellant: Ephraim Zitha Macala; Respondent: Town Council of Maokeng
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
22 May 1992
Case Number
15/91
Procedural Posture
Civil Appeal / Appeal From Orange Free State Provincial Division; Merits Determined, Damages Stood Over
Outcome
Appeal dismissed with costs.
Judges
Hoexter, Vivier, Goldstone
Legal Topics
Vicarious Liability, Course and Scope of Employment, Creation of Risk, Municipal Liability
Delict Vicarious Liability Course and Scope of Employment Creation of Risk Municipal Liability

Case Brief

Summary, issues, holding and outcome

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Parties

Ephraim Zitha Macala

Appellant

Town Council of Maokeng

Respondent

Procedural Posture

Civil Appeal / Appeal From Orange Free State Provincial Division; Merits Determined, Damages Stood Over

Legal Issues

  1. 1 Whether the respondent is vicariously liable for the unlawful shooting of the appellant by its employee, Mthembu.
  2. 2 Whether Mthembu was acting in the course and scope of his employment when he shot the appellant.
  3. 3 Whether the principle of creation of risk applies to impose liability on the respondent.

Ratio Decidendi

The Supreme Court of Appeal held that Mthembu, in shooting the appellant, was not acting in the course and scope of his employment with the respondent. There was no evidence, either subjectively or objectively, that his actions were connected to police work or the business of the respondent. The fact that Mthembu wore a police uniform and used an official firearm was insufficient to establish liability. The creation of risk principle, as articulated in Minister of Police v Rabie, did not extend to the circumstances of this case, where the acts were personal and unrelated to municipal duties. Accordingly, the respondent was not vicariously liable for the damages suffered by the appellant.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.