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

18

IN

THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO: CA 1/2001

In the matter between

MICHELLE

CHARMAIN WAIT APPELLANT

and

THE MINISTER OF

DEFENCE RESPONDENT

JUDGMENT

­­­­­PICKERING J:

Appellant is Mrs. Michelle Charmain Wait. On the evening of 6 August 1999 appellant’s husband, George Wait (“the deceased”) was shot and fatally wounded by one Dyase, then a military policeman with the rank of private in the employ of the Minister of Defence at a military base in Port Elizabeth. Appellant, acting both in her personal capacity and in her capacity as mother and natural guardian of her four minor children, sued Dyase, as first defendant, and the Minister of Defence, as second defendant, jointly and severally in the South East Cape Local Division for damages based, inter alia, upon loss of support as a result of her husband’s death. At the commencement of the trial before Kroon J the action against Dyase, the first defendant, was postponed and the matter proceeded in respect of the claim against second defendant only, on the basis that he was in law vicariously liable for the actions of Dyase. An order was made by agreement separating the issues of liability and quantum. At the conclusion of the trial appellant’s claims against the Minister of Defence were dismissed by Kroon J and judgment was entered in the latter’s favour with costs. Appellant now appeals, with the requisite leave, against this judgment.

For the sake of convenience I shall continue to refer hereunder to appellant and respondent as plaintiff and second defendant respectively and to Dyase as first defendant.

A formal admission was made during the course of the trial in the court a quo to the effect that the killing of the deceased by first defendant was wrongful and unlawful. The only issue therefore to be resolved by Kroon J was whether second defendant was vicariously liable to plaintiff for such damages as may have been suffered by her and her minor children consequent upon such wrongful and unlawful killing of the deceased.

The physical milieau relevant to the tragic events which unfolded on the night of Friday 6 August 1999 was described by Kroon J as follows:

“1. The deceased, the plaintiff and their children were resident at no. 42 Aloe Crescent, Driftsands, Forest Hill, Port Elizabeth. Their residence was one of a group of semi-detached houses which front on either Aloe Crescent or Aloe Street. The latter, which intersects the former, is to the west of the group of houses.

At the rear of the houses, i.e., to the south thereof, is a grassed area, which is municipal property. Access to this area may be had from Aloe Street. Further west, a block away from Aloe Street, are the premises of the Driftsands Supermarket. Approximately 70m further west is a shebeen. A military base, styled the Eastern Province Command, Forest Hill, Port Elizabeth, and comprising an extensive area, is situated to the south of the grassed area referred to above. A fence separated the two areas referred to in (4). As at 6 August 1999, however, the fence was broken down and virtually non-existent. It was a common practice for persons walking to and from the military base to pass through the broken down fence and to traverse the grassed area between the fence and Aloe Street. There was in fact a well worn footpath leading from Aloe Street, over the grassed area, through the fence and into the military base area past the mess. The mess is the military building nearest the fence and is situated some 80 to 100 metres to the south-east of the plaintiff’s home. Further to the south-east of the mess is the base’s duty room alongside which is the office of the base’s military police. The main gates of the base are on the western perimeter of the base, a considerable distance, possibly some 400m, from the plaintiff’s home, the mess and the duty room. To the east of the mess, and a short distance north-east of the duty room is a bungalow building which housed, inter alia, the room where the first defendant resided.”

In her evidence plaintiff stated that on the evening of 6 August 1999 deceased returned home from work. He had invited certain under-privileged children whom he had previously befriended to join them that evening for a braaivleis. Whilst plaintiff busied herself inside the house with preparations for her children’s bedtime deceased and the invited children were outside around the braai fire. Deceased was drinking rum and coca cola. After having put the children to bed plaintiff joined the deceased outside. Shortly after 8pm she decided to check on the children. As she started up the steps leading to the backdoor she heard what she described as being a “rowdy noise” and saw two people on the footpath leading to the military base. She thought no more thereof and entered the house. She was sitting with one of the children who was somewhat restive when she heard deceased outside telling somebody not to make so much noise as there were children sleeping in the house. Some little while later she heard three shots. One of the boys who had been in the company of deceased entered and told her that deceased had been shot. She ran outside and found deceased lying motionless at a spot inside the military base. It is common cause that this spot was along the pathway some 80 metres from plaintiff’s home. It is further common cause that the fatal gunshot wound inflicted by first

respondent on deceased was to the left front of the chest with an exit wound in the right back. Deceased also sustained a second gunshot wound, the bullet entering deceased’s left buttock and existing through his left loin. The weapon used by first defendant was his personal 9mm pistol and was not army issue. Blood/alcohol tests performed upon deceased’s body revealed that at the time of his death the alcohol content of his blood was 0,17 g per 100 ml.

Other than the details which I have set out above plaintiff was unable to throw light on any of the events which culminated in the shooting of deceased by first defendant. Kroon J, however, found that certain facts set out in the letter of demand addressed by plaintiff’s attorneys to second defendant were the facts on which plaintiff, through her attorneys, contended that second defendant was vicariously liable for the actions of first defendant and that those facts were accordingly in terms adopted by her. The averments relating to those facts, so Kroon J held, were accordingly admissions by her and thus receivable as evidence of the truth of the facts so admitted. After an analysis of these admissions Kroon J held that they were, in effect, reliable and in accordance with the other acceptable evidence. He therefore accepted them as constituting proof of the facts admitted.

The relevant paragraphs of the letter of demand read as follows:

“On the evening of the 6 August 1999 and at approximately 8h45 pm (sic) Welcome Monwebisi Dyase, a member of the South African Defence Force and stationed at Driftsands in the Regional Joint Task Force South Base Unit intentionally and unlawfully killed our client’s husband George Iver Wait by shooting him.

According to eyewitnesses, the said Welcome Monwabisi Dyase and two other persons were walking past our client and her deceased husband’s property on the evening of 6 August 1999 and, were clearly under the influence of alcohol and were being disruptive and abusive.

Our client’s husband approached the three and requested them to tone down their voices and the content of their language. Client’s husband was then assaulted for no reason at all and in the retaliation he gave chase to the person who assaulted him. We assume that this person was also a member of the Defence Force although it is not clear to the eyewitnesses whether this other person was in fact in uniform. Welcome Monwabisi Dyase was however in uniform and killed our client’s husband with his issue firearm. Not only was such killing intentional and without justification, but under the circumstances was perpetuated by his gruesome actions afterwards (together with his cohorts) in laughing at our client when she rushed out to her husband and lay crying over his dying or dead body.

The murderous intent showed by the said Welcome Monwabisi Dyase is illustrated by the fact that after firing several shots into George Iver Wait when he was already lying dying or dead on the ground, he was aiming his firearm to fire more shots into the body of George Iver Wait but was prevented from doing so by the brave actions of a 13 year old school boy who knocked away the arm of the said Dyase in which the firearm was held.

As a result of the unlawful actions of the member of the Defence Force who at the time was legally acting within the course of his employment with the Defence Force (Minister of Defence) our client has suffered damages not only in her personal capacity as custodian and guardian of the minor children in that they have lost income and maintenance support of the breadwinner of the family who at the time of the killing was 33 years old and was of a healthy disposition.”

Sergeant Soldati testified that on the evening on question he was on duty in the duty room at the military base. First defendant was also on duty that night as a member of what was termed the C Section Crime Prevention shift, led by Corporal Skolpati. First defendant was properly attired in uniform and Soldati noticed nothing untoward as to his condition. The duties of the C Section Crime Prevention shift entailed patrolling the army base on foot. Soldati stated that when the patrol left under the command of Corporal Skolpati the first defendant duly left with them in order to commence the patrol duties.

In his testimony Corporal Skolpati confirmed that he was, on 6 August 1999, the leader of the C Section Crime Prevention shift. He testified that patrol members were never issued with firearms when performing patrol duties. Such members were furthermore not allowed to use privately owned firearms when on duty. At approximately 19h20 he inspected the members of his patrol, including first defendant, and was satisfied that they were all correctly dressed and sober. At 20h00 he left the duty office together with the members of his patrol and proceeded towards the main gates of the military base from where the patrol was to commence. On the way to the main gate first defendant requested permission to be allowed to go and fetch a jersey from his bungalow. Skolpati agreed thereto and instructed first defendant to return to the main gate where the patrol would then begin. According to Skolpati he waited at the main gate for approximately 30 minutes but first defendant did not return. He thereafter commenced the patrol without first defendant. In the course of his patrols Skolpati observed certain police vehicles entering the premises of the military base. He wanted to ascertain at the duty room as to why the police were present and he accordingly returned thereto at approximately 21h30 and reported to a superior, Warrant Officer Joseph, who was standing outside the duty room, the fact of first defendant’s absence. At that stage both Joseph and Soldati were already aware that first defendant was being sought by the police with regard to the shooting of deceased.

He then observed that first defendant had been arrested by the police.

It is common cause that the duty room occurrence book contains an entry reflecting the fact that the C section shift members had reported back to the duty room. It also contains entries relating to the shooting of deceased and the arrest of first defendant on a charge of murder.

Private Nqumana testified that she was in her room in the single woman’s quarters at the military base on the evening in question between the hours of 20h00 and 21h00 when first defendant, dressed in his uniform, entered her room. He had blood on his hand and told her that he had shot at a person. She was shocked and left him in the room, locking the door from the outside. His condition appeared to her to be normal.

Detective Inspector Brown, stationed at Humewood, stated that she proceeded to the scene of the shooting. First defendant was not then present but she saw him some time later that night at the police station. He was dressed in uniform but without his beret. He appeared to her to be clearly under the influence of alcohol. According to her first defendant “spoke a lot, his eyes were hazy, his fly was open” and he smelled of alcohol. She decided not to take a statement from him that night because of the fact that he was under the influence of alcohol. She arranged for a blood sample to be taken from him because of his intoxicated condition. It is common cause that such a blood sample was taken from first defendant at 11pm and that the alcohol content of his blood was 0,22 g per 100ml.

First defendant was not called as a witness as the trial. Kroon J declined to draw an inference adverse to either party from the failure to call him. His judgment on this aspect has not been challenged on appeal.

In his judgment Kroon J found that first defendant had abandoned the affairs of his master, the second defendant, and had deserted his post to go on a frolic of his own without being at all on his master’s business. He further rejected the argument advanced on behalf of second defendant to the effect that if first defendant had indeed abandoned his duties for the period of his absence from the military base then his purpose in returning to the military base was to resume those duties and that he was in fact performing those duties when he sought to deal with the deceased who had trespassed onto the premises of the military base.

It will be convenient at this stage to have regard to the legal principles applicable to this matter.

In Minister of Safety and Security v Jordaan t/a Andre Jordaan Transport 2000 (4) SA 21 (SCA) the following was stated at 24 H – 25 E:

“The standard test for vicarious liability is, of course, whether the delict in question was committed by an employee while acting in the course and scope of his employment. The inquiry is frequently said to be whether at the time of the employee was about the affairs of business or doing the work of the employer (see, for example, Minister of Law and Order v Ngobo [1992] ZASCA 172; 1992 (4) SA 822 (A) at 827B; Minister of Police v Rabie 1986 (1) Sa 117 (A) at 132 G). This is no doubt true, but it should not be overlooked that the affairs or business or work of the employer in question must relate to what the employee was generally employed or specifically instructed to do. Provided the employee was engaged in activity reasonably necessary to achieve either objective, the employer will be liable (see Estate Van der Byl v Swanepoel 1927 AD 141 at 145 – 6, 151 – 2). The difficulty, of course, is that while the general approach to be adopted may be easy enough to formulate, its lack of exactitude is such that problems inevitably arise in its application. This is particularly so in the so-called ‘deviation’ cases. What is clear is that not every act of an employee committed during the time of his employment which is in the advancement of his personal interest or for the achievement of his own goals necessarily falls outside the course and scope of his employment. (Viljoen

v Smith [1996] ZASCA 105; 1997 (1) SA 309 (A) at 315 F – G.) In each case, whether the employer is to be held liable or not must depend on the nature and extent of the deviation. Once the deviation is such that it cannot be reasonably held that the employee is still exercising the functions to which he was appointed, or still carrying out some instruction of his employer, the latter will cease to be liable. Whether that stage has been reached is essentially a question of degree. (See Feldman (Pty) Ltd v Mall 1945 AD 733 at 756 – 7; Union Government v Hawkins 1944 AD 556 at 563; Viljoen v Smith (supra at 316E – 317A).) The answer in each case will depend upon a close consideration of the facts. The same is true of the inquiry as to whether the deviation has ceased and the employee has resumed the business of his employer.”

In determining the issue of second defendant’s vicarious liability it is also important to bear in mind that it does not follow from the fact that a servant of the State has committed a wrongful act while on duty that he was therefore acting in the course and scope of his employment. (See Minister of Police v Mbilini 1983 (3) SA 705 (AD) at 711 D – G.) That a servant of the State was indeed on duty at the relevant time is but one of the factors to be taken into account in a determination of the issue as to whether or not he was acting in the course and scope of his employment.

In Minister of Police v Mbilini supra the following was stated at 711 H – 712 A:

“Where a person is sought to be held liable for the wrongful act of an alleged servant the position has always been that it is for the plaintiff to prove that the person who did the wrong was (a) the servant of the party sought to be held liable and (b) that he performed the wrongful act in the course or scope of his employment. As long ago as Mkize v Martens 1914 AD 382 Innes JA stated at 319 that:

‘(a) plaintiff who seeks to make a master liable for the negligent act

of a servant must prove that the servant was acting in the course of

his employment. That onus may conceivably be discharged by

inference from established facts; but it does not seem to me to be

shifted by the mere proof that the act was done at a time when and

a place where the servant was in his master’s employ.’”

In his argument before us Mr. Beyleveld, who with Mr. Huisamen appeared for second defendant, submitted that in coming to the conclusion he did Kroon J erred.

Whilst not challenging the correctness of the finding by Kroon J that the averments contained in the plaintiff’s letter of demand were admissions by her which were receivable as evidence of the truth of the facts so admitted, Mr. Beyleveld submitted that the learned Judge erred in attaching undue weight thereto. He submitted that the use of the phrase “according to eye witnesses” in the letter of demand was an indication that the thereafter following exposition of facts was never intended to be an entirely reliable memorial of such facts. He pointed further in this regard to the fact that the letter of demand referred erroneously to the use by first defendant of his “issue” firearm.

In his judgment Kroon J dealt at some length with the question of the weight to be attached to the admissions contained in the said letter. As stated by him the admissions were, to the extent that they overlapped therewith, consistent not only with plaintiff’s own evidence but also with the other admitted facts, namely, that first defendant was in uniform; that he had absented himself from his patrol duties; that he had consumed intoxicating liquor; and that he was in possession of a firearm. I am not persuaded by anything that Mr. Beyleveld has urged upon us that the learned Judge erred in his approach to the matter or in his evaluation of the weight to be accorded to the admissions. In particular, the fact that the firearm used by first defendant was his personal and not his issue firearm is, to my mind, in no way a material contradiction casting any doubt upon the reliability of the other admissions contained in the letter of demand. Furthermore, once it is accepted that the averments in the letter of demand do indeed constitute admissions by plaintiff then the fact that such information was gleaned from “eyewitnesses” and that plaintiff could not personally confirm the correctness thereof is, in my view, irrelevant.

I am satisfied therefore that the matter falls to be decided on the basis of the evidence accepted by Kroon J.

In support of his submission that first defendant had not deviated from his duties to the extent that it could be said that he had at any stage abandoned his work altogether Mr. Beyleveld pointed in particular to the following factors which, so he submitted, were relevant to the consideration of this issue:

First defendant was a servant of the second defendant; he was in uniform on the night in question; he was on duty and reported to the duty room where he signed in for duty and was posted out on patrol as a member of the C Section shift under the command of Corporal Skolpati; no official report of dereliction of duty or abandonment of work was made in the records as should have been done had he so abandoned his work; and the fatal shooting occurred as a spot within the confines of the military base.

In my view, however, there can be no doubt that first defendant at 20h00 on the night in question abandoned his duties at least until his return to the military base later that night. I will deal hereunder with the question as to whether upon his return he could be said to have resumed such duties.

First defendant was booked on duty at 19h30. He was assigned to Corporal Skolpati’s C Section Crime Prevention shift. He left the duty room at 20h00 together with the other members of his patrol in order to proceed to the main gates of the military base from where the patrol would begin. On the way to the gates he left the patrol, ostensibly in order to fetch a jersey. He did not return to the patrol which thereafter commenced without him. It is conceded by plaintiff that at some stage thereafter first defendant left the premises of the military base. The probabilities are that he proceeded to the shebeen situated in the close vicinity of Aloe Street. Even were he not to have been in the shebeen the incontrovertible fact is that during his absence from the military base he must have consumed considerable quantities of alcohol in view of the fact that, approximately three quarters of an hour later, when he passed by deceased’s home in the company of two other persons, he was in an inebriated state.

In these circumstances, where instead of patrolling the military base with the other members of his shift, he had left the base without leave, in order to consume alcohol, the suggestion that he had merely deviated to some extent from second defendant’s business is, in my view, entirely devoid of merit. As stated by Kroon J, a finding that first defendant abandoned the affairs of second defendant is irresistible. He had clearly deserted his post at the military base and was, for that period of time, engaged on a frolic of his own which was quite unconnected with second defendant’s business. The fact that no official report of dereliction of duty or abandonment of work was made is in my view of no significance when regard is had to the circumstances prevailing at the time Skolpati returned to the duty room and to Skolpati’s evidence that he reported the matter of first defendant’s absence to warrant officer Joseph who was at that stage already aware that first defendant was being sought by the police.

Mr. Beyleveld submitted, however, that, on the probabilities, first defendant at all times had the intention to return to his duties at the base and that at the time the fatal incident occurred he was on duty. In developing this argument he submitted that first defendant must have been fully aware of the dire disciplinary consequences of a failure on his part to report back for duty that night. It was, so he submitted, inconceivable that in these circumstances he would not have rejoined Skolpati’s patrol upon re-entering the military base. He submitted further that it was improbable that Skolpati and his patrol would have waited at the main gates for the return of first defendant for the length of time which they did unless they had in some way colluded with him in his liquor purchasing foray outside the military base and were waiting for him to return, probably to provide them with liquor as well.

The immediate problem with this latter submission is that at no stage during the trial was it suggested on behalf of plaintiff to Skolpati, or indeed to any other witness, that such was the reason for the delay in commencing the patrol. Mr. Beyleveld’s submissions in this regard amount to no more than baseless speculation. Furthermore, as was submitted by Mr. De Bruyn, who with Mr. Pienaar appeared for second defendant, first defendant was, at the time of the shooting, not proceeding in the direction of the main gates where the members of Skolpati’s patrol were allegedly waiting but was proceeding in a different direction towards the duty room and his own bungalow, both of which were, as appears also from the aerial photograph of the area, exhibit “D“, some considerable distance away from the main gates. He was also at the time in the company of a civilian and an off-duty soldier, an indication in my view that he was bent on pursuing his own personal interests rather than the business of second defendant.

Mr. Beyleveld’s argument also loses sight, in my view, of the fact that at the time first defendant returned to the military base he had already transgressed and contravened a number of Defence Force regulations and standing orders. In particular, he had not only absented himself without leave from his patrol duties but had done so in order to consume intoxicating liquor. His consumption of intoxicating liquor was such that he was, at the time of his return to the base, clearly drunk. Had he reported back for duty in that state the disciplinary consequences would in all probability have been even more dire than those already confronting him. In my view, on a conspectus of the evidence as a whole, the probabilities are overwhelmingly to the effect that first defendant, on his return to the military base in his inebriated state, had no intention whatsoever of resuming his patrol duties. Accordingly Kroon J’s finding to this effect cannot, with respect, be faulted.

The fact that first defendant had abandoned his duties entirely serves, in my view, to distinguish the present matter from cases such as Union Government v Hawkins 1944 AD 556 relied upon by Mr. Beyleveld.

Mr. Beyleveld submitted further that even in the event of it being held that first defendant had abandoned his patrol duties at the time that the fatal incident occurred he was, at that time, engaged in carrying out the functions for which he was generally employed. It was, so Mr. Beyleveld submitted, the duty of first defendant to arrest, detain and to take to the charge office persons, including civilians such as deceased, who entered upon the premises of the military base without proper authorisation. It was therefore his duty to ensure that no unauthorised entry into the base by civilians took place or that any other unlawful acts occurred within the military base area. The place where deceased was shot by first defendant was at a spot within the military base area and first defendant was accordingly fully entitled to apprehend the deceased who had entered the area without authorisation. In shooting the deceased first defendant was doing no more than executing that part of his duties as a military policeman which required him to take steps against a trespasser. This argument was given short shrift by Kroon J who stated, inter alia, that it flew in the face of the proven facts, the probabilities and common sense. I respectfully agree. It is clear, in my view, that, as Kroon J pointed out, first defendant’s conduct was pursuant to a private altercation with the deceased,

such altercation having being fueled by the deceased’s objections to the rowdy conduct of the first defendant and his two companions. It was in immediate consequence of this ongoing private altercation that the deceased pursued first defendant and his companions into the premises of the military base. The altercation culminated ultimately in the fatal shooting of the deceased at a spot a mere 80m from deceased’s home. In my view the fact that the shooting occurred within the boundaries of the military base was, on all the evidence, purely fortuitous.

In Minister of Police v Rabie 1986 (1) SA 117 (A) the following is stated at 134

C – E:

“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 be made to the servant’s intention (Cf Estate Van der Byl v Swanepoel 1927 AD 141 at 150). 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 master may yet be liable. This is an objective test.”

In the present matter there is no evidence whatsoever to suggest that in acting as he did first defendant subjectively intended to exercise his powers as a military policeman. (Cf Macala v Maokeng Town Council [1992] ZASCA 76; 1993 (1) SA 434 (AD)). His subjective intention, as was stated by Kroon J, was clearly to put a stop to the deceased who was objecting to his conduct. This conclusion is fortified by the fact that the first defendant, after having shot deceased, laughed at plaintiff who was kneeling over his body, allowed a thirteen year old school boy to intervene; and then left the scene and proceeded to the room of private Nqumana without reporting the fact of the incident to any officer or person in authority. This irrational conduct is not the conduct of a military policeman who has apprehended and shot a trespasser in the course of his employment.

I am also satisfied that, on an application of the objective test to which I have referred above, there is equally no evidence to suggest that in shooting deceased first defendant was acting in the interests of or was about the business of second defendant. I am satisfied that he was not even remotely engaged in the affairs of second defendant at any relevant stage prior to his shooting of the deceased.

In all the circumstances I am of the view that plaintiff failed to discharge the onus upon her of proving that first defendant was acting in the course of his employment. The appeal therefore falls to be dismissed.

That leaves the question of costs. It is common cause that they are to follow the event and are to include the costs of two counsel.

The question was mero motu raised with Mr. De Bruyn as to whether, in the light of the lengthy heads of argument filed by second defendant, second defendant was entitled to all the costs thereof. In view of the fact, however, that Mr. Beyleveld did not pursue the matter and that, in the particular circumstances of this appeal, we have derived substantial assistance from second defendant’s heads of argument, I am satisfied that no special award of costs is warranted in this regard.

I would accordingly dismiss the appeal with costs, including the costs consequent upon the engagement of two counsel.

___

J.D. PICKERING

JUDGE OF THE HIGH COURT

I agree. The appeal is dismissed with costs including the costs consequent upon the engagement of two counsel.

M.P. JENNETT

I agree,

R.J.W JONES