Mkhatswa v Minister of Defence (413/97) [1999] ZASCA 91; [2000] 1 All SA 188 (A); 2000 (1) SA 1104 (SCA) (29 November 1999)

Mkhatswa v Minister of Defence (413/97) [1999] ZASCA 91; [2000] 1 All SA 188 (A); 2000 (1) SA 1104 (SCA) (29 November 1999)

The Supreme Court of Appeal held that the harm suffered by the plaintiff was not reasonably foreseeable by those in command of Apex base. The soldiers involved were disciplined and experienced, and there was no evidence of prior incidents that would have alerted those in command to the risk of misappropriation of vehicles or firearms. The structures in place, including sentries and Standing Orders, were sufficient to prevent unauthorised removal of firearms and vehicles. The sentries did not act negligently within the course and scope of their employment, and there was no proof that they knowingly allowed the departure of the Samil 50 truck and rifles. The plaintiff failed to establish...

Citation
[1999] ZASCA 91
Parties
Appellant: Bennett Madala Mkhatswa; Respondent: Minister of Defence
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 November 1999
Case Number
413/97
Procedural Posture
Civil Appeal / Appeal From Full Court Decision
Outcome
Appeal dismissed with costs.
Judges
Smalberger, Vivier, Howie, Streicher, Melunsky
Legal Topics
Vicarious Liability, Negligence, Omission Liability, Scope of Employment
Delict Vicarious Liability Negligence Omission Liability Scope of Employment

Case Brief

Summary, issues, holding and outcome

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Parties

Bennett Madala Mkhatswa

Appellant

Minister of Defence

Respondent

Procedural Posture

Civil Appeal / Appeal From Full Court Decision

Legal Issues

  1. 1 Whether the defendant is vicariously liable for the wrongful omissions of those in command of Apex base.
  2. 2 Whether the defendant is vicariously liable for the alleged negligence of sentries in failing to prevent the unauthorised departure of troops, a military vehicle, and firearms.
  3. 3 Whether the harm suffered by the plaintiff was reasonably foreseeable by those in command of Apex base.

Ratio Decidendi

The Supreme Court of Appeal held that the harm suffered by the plaintiff was not reasonably foreseeable by those in command of Apex base. The soldiers involved were disciplined and experienced, and there was no evidence of prior incidents that would have alerted those in command to the risk of misappropriation of vehicles or firearms. The structures in place, including sentries and Standing Orders, were sufficient to prevent unauthorised removal of firearms and vehicles. The sentries did not act negligently within the course and scope of their employment, and there was no proof that they knowingly allowed the departure of the Samil 50 truck and rifles. The plaintiff failed to establish...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.