Wait v Minister of Defence (CA 1/2001) [2001] ZAECHC 2; [2002] 3 All SA 414 (E) (7 September 2001)

Wait v Minister of Defence (CA 1/2001) [2001] ZAECHC 2; [2002] 3 All SA 414 (E) (7 September 2001)

The court found that the military policeman, Dyase, had abandoned his duties and was engaged in a personal frolic, having left his patrol without permission and consumed alcohol. The shooting of the deceased arose from a private altercation and was not connected to the business of the Minister of Defence. There was no evidence that Dyase subjectively intended to exercise his powers as a military policeman or that his conduct was objectively linked to his employment duties. The appellant failed to discharge the onus of proving that Dyase was acting in the course and scope of his employment at the time of the shooting. Accordingly, the Minister of Defence was not vicariously liable.

Citation
[2001] ZAECHC 2
Parties
Appellant: Michelle Charmain Wait; Respondent: Minister of Defence
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
7 September 2001
Case Number
CA 1/2001
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Damages Claim for Loss of Support; Liability Separated From Quantum; Trial Court Dismissed Claim; Appeal Heard.
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
J.D. Pickering, M.P. Jennett, R.J.W Jones
Legal Topics
Vicarious Liability, Course and Scope of Employment, Onus of Proof, Deviation Cases, State Liability
Delict Civil Procedure Vicarious Liability Course and Scope of Employment Onus of Proof Deviation Cases State Liability

Case Brief

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Parties

Michelle Charmain Wait

Appellant

Minister of Defence

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Damages Claim for Loss of Support; Liability Separated From Quantum; Trial Court Dismissed Claim; Appeal Heard.

Legal Issues

  1. 1 Whether the Minister of Defence is vicariously liable for the wrongful and unlawful killing of the deceased by a military policeman.
  2. 2 Whether the actions of the military policeman were committed in the course and scope of his employment.
  3. 3 Whether the plaintiff discharged the onus of proving vicarious liability.

Ratio Decidendi

The court found that the military policeman, Dyase, had abandoned his duties and was engaged in a personal frolic, having left his patrol without permission and consumed alcohol. The shooting of the deceased arose from a private altercation and was not connected to the business of the Minister of Defence. There was no evidence that Dyase subjectively intended to exercise his powers as a military policeman or that his conduct was objectively linked to his employment duties. The appellant failed to discharge the onus of proving that Dyase was acting in the course and scope of his employment at the time of the shooting. Accordingly, the Minister of Defence was not vicariously liable.

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed.
  • Costs are awarded against the appellant, including the costs consequent upon the engagement of two counsel.