Masuku and Another v Mdlalose and Others (436/95) [1997] ZASCA 46; 1998 (1) SA 1 (SCA); [1997] 3 All SA 339 (A); (23 May 1997)

Masuku and Another v Mdlalose and Others (436/95) [1997] ZASCA 46; 1998 (1) SA 1 (SCA); [1997] 3 All SA 339 (A); (23 May 1997)

The majority held that the concepts 'in the course and scope of employment' and 'in pursuance of the Act' are not identical. The particulars of claim were, at best, equivocal as to whether the conduct complained of was in pursuance of the Police Act. The defendants, who bore the onus in the special plea, failed to prove that the first defendant's conduct was in pursuance of the Act, and therefore, the notice requirement under section 32(1) did not automatically apply. The special plea was correctly dismissed, and the appeal failed. The minority (Olivier JA) disagreed, holding that the concepts are co-extensive and that the plaintiffs' allegations amounted to an averment that the act was...

Citation
[1997] ZASCA 46
Parties
Appellant: Constable S P Masuku; Appellant: The Minister of Law and Order; Respondent: D W Mdialose; Respondent: Khombisile Mqadi N.O.; Respondent: Shogani Ndlovu N.O.
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
23 May 1997
Case Number
436/95
Procedural Posture
Civil Appeal / Appeal From Special Plea Decision in the Durban and Coast Local Division
Outcome
Appeal dismissed with costs (majority); minority would have upheld the appeal and special plea.
Judges
Smalberger JA, Nienaber JA, Olivier JA, Scott JA, Streicher AJA
Legal Topics
State Liability, Vicarious Liability, Limitation of Actions, Notice Requirements, Police Act, Special Plea
Civil Procedure Delict State Liability Vicarious Liability Limitation of Actions Notice Requirements Police Act Special Plea

Case Brief

Summary, issues, holding and outcome

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Parties

Constable S P Masuku

Appellant

The Minister of Law and Order

Appellant

D W Mdialose

Respondent

Khombisile Mqadi N.O.

Respondent

Shogani Ndlovu N.O.

Respondent

Procedural Posture

Civil Appeal / Appeal From Special Plea Decision in the Durban and Coast Local Division

Legal Issues

  1. 1 Is a police officer acting 'in the course and scope of his employment' always acting 'in pursuance of' the Police Act 7 of 1958?
  2. 2 Does the failure to give timeous notice under section 32(1) of the Police Act bar the plaintiffs' claim?
  3. 3 Are the concepts 'in pursuance of the Act' and 'in the course and scope of employment' co-extensive for purposes of State liability?

Ratio Decidendi

The majority held that the concepts 'in the course and scope of employment' and 'in pursuance of the Act' are not identical. The particulars of claim were, at best, equivocal as to whether the conduct complained of was in pursuance of the Police Act. The defendants, who bore the onus in the special plea, failed to prove that the first defendant's conduct was in pursuance of the Act, and therefore, the notice requirement under section 32(1) did not automatically apply. The special plea was correctly dismissed, and the appeal failed. The minority (Olivier JA) disagreed, holding that the concepts are co-extensive and that the plaintiffs' allegations amounted to an averment that the act was...

Court Disposition

Appeal dismissed with costs (majority); minority would have upheld the appeal and special plea.

Orders

  • The appeal is dismissed with costs.