IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
     CASE NO: 23969/2015

(1)	REPORTABLE: YES/NO 
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED

_________29/11/16        ______________________
Date: 			WHG VAN DER LINDE 

In the matter between:
TSOTETSI, THABO ABEL                                                                                                                            Plaintiff
and
THE HONOURABLE MAGISTRATE
DELIZE SMITH                                                                                                                                First Defendant
THE MINISTER OF JUSTICE AND CORRECTIONAL SERVICES                                           Second Defendant

Judgment

Van der Linde, J:

[1]	In this trial action the plaintiff sues the first defendant, a magistrate, and the second defendant, the Minister of Justice, for damages arising from his alleged unlawful detention. The first defendant had, on 20 November 2012, declared the plaintiff’s bail forfeited when he had failed to appear before her on 6 November 2012 as accused in a pending trial, despite the fact he was unable to do so, since he was in custody in another matter. The first respondent, in doing so, was said to have acted maliciously. 
[2]	The matter before the first defendant was then postponed by her till 20 February 2013, and in so doing the first defendant was again said to have acted maliciously, knowing that the plaintiff would be incarcerated for a prolonged period of time.  The plaintiff was ultimately released on bail on 4 February 2013, having spent 75 days in prison.
[3]	The second defendant was joined on the basis that he was said to be the “overall employer of all Magistrates in the lower courts in terms of section 9(1)(a) of the Magistrates’  Courts Act 32 of 1944.” That section says that it is the second defendant that appoints magistrates. Further, in terms of section 10 of the Magistrates’ Act 90 of 1993, the Minister of Justice appoints magistrates in consultation with the Magistrates’ Commission. 
[4]	Four special pleas were referred to me for adjudication, it being common cause that the trial of the matter on the merits was to be postponed. The first special plea was by the first defendant, and it was that having regard to the first defendant’s position as a duly appointed Regional Court Magistrate, by virtue of the independence enjoyed by the courts under s.165(2) of the Constitution, the first defendant cannot be held liable for the plaintiff’s alleged damages. 
[5]	Counsel for the first defendant conceded that the judicial independence immunity did not apply should the first defendant be found to have acted maliciously. It was a concession which in my view was rightly made, and since the plaintiff’s claim is that the first defendant had in fact acted maliciously, this special plea must be dismissed. 
[6]	The second, third and fourth special pleas were raised by the second defendant. The second special plea was that the second defendant does not employ the first defendant, and so vicarious liability finds no application. The third special plea was that since the first defendant is not liable by dint of her judicial independence immunity, the second defendant is a fortiori also not liable. And the second defendant’s fourth special plea is that his joinder was inappropriate since he is in law not liable for the plaintiff’s alleged damages, for the reasons raised in the earlier special pleas.
[7]	It will at once be seen that the single issue that arises in relation to the remaining three special pleas is whether the second defendant could be vicariously liable for the malicious conduct of the first defendant, a matter expressly left open by the Supreme Court of Appeal in Minister of Safety and Security and Others v Van der Walt and Another.
[8]	In Van der Walt the case against the magistrate was also that she had acted maliciously, but she was not sued in her personal capacity. Instead, the Minister of Justice was sued on the basis that he was vicariously liable for the malicious, alternatively negligent conduct of the magistrate. 
[9]	The High Court upheld the contention that, on the facts, the magistrate had acted maliciously and, acknowledging the Constitutional Court’s judgment in Van Rooyen v The State, held that nonetheless magistrates are appointed and employed by the Minister of Justice. Van der Merwe, AJ held that in carrying out their functions independently and impartially, they still act within the course and scope of their employment and in accordance with the basis on which they were appointed. He held that, as in the past, the Minister of Justice remained vicariously liable for the conduct of magistrates acting in the course and scope of their employment.
[10]	Van der Merwe, AJ was well aware of the judicial independence immunity. The learned acting judge relied on a passage in the judgment of Harms, JA in Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA where his lordship held that the decisive policy underlying judicial independence immunity was to enable the judiciary to adjudicate fearlessly. His lordship held there that “Litigants … are not entitled to a perfect process, free from innocent (i.e. non-mala fide) errors.” 
[11]	Consequently Van der Merwe, AJ held:
“Accordingly, the principle has long been established in the common law that a judicial officer forfeits his or her immunity when such officer's conduct was malicious or in bad faith. (See eg Penrice v Dickinson 1945 AD 6 at 14-15; Moeketsi v Minister van Justisie 1988 (4) SA 707 (T) at 713G and 714C; Claassen v Minister of Justice and Constitutional Development 2010 (6) SA 399 (WCC) at par 22-23.) Such an approach is in my view fully compliant with the demands of the constitutional state and the specific provisions of the Constitution referred to above.”

[12]	 Penrice articulated the principle, in a case in which a magistrate was sued for damages, with reference to Roman-Dutch writers, that  a judicial officer is not liable for a bad judgment given through want of skill, but “otherwise if fraud and deceit have been present”. Van Zyl, J in Moeketsi followed Penrice, and Binns-ward, J in Claassen in turn followed Moeketsi. 
[13]	On the pertinent question whether the Minister of Justice should be held vicariously liable for the malicious acts of the magistrate, Van der Merwe, AJ held:
“The question who magistrates are employed by is a legal issue, governed by statute. In my view the legal position of employees of the National Prosecuting Authority and that of magistrates are not identical. Section 9(1)(a) of the Magistrate's Courts Act, 32 of 1944 provides expressly that magistrates are appointed by the Minister of Justice. The Magistrates Act, 90 of 1993, establishes a Magistrate's Commission which inter alia ensures that the appointment of magistrates by the Minister takes place without favour or prejudice and advises the Minister thereon. In terms of section 10 of the Magistrate's Act, the Minister of Justice appoints magistrates after consultation with the Magistrate's Commission. Although magistrates function independently and impartially (see Van Rooyen v The State 2002 (5) SA 246 (CC)), that does not detract from the fact that they are appointed by and employed by the Minister of Justice. To the contrary, the statutory framework within which magistrates is appointed by the Minister of Justice ensures that they are appointed on the basis that they function independently and impartially. In carrying out their functions independently and impartially, they act within the course and scope of their appointment and in accordance with the basis on which they were appointed. It follows that the Minister of Justice remains in my view, as in the past, vicariously liable for the conduct of magistrates acting within the course and scope of their employment. As indicated above, it was admitted in both pleas that the magistrate had acted within the course and scope of her employment as a judicial official.”

[14]	 In the Supreme Court of Appeal, Tshiqi, JA did not uphold Van der Merwe, AJ on the factual question of whether the magistrate had acted with malice. The learned judge of appeal held that the finding that the magistrate had interfered maliciously to alter the charges to include the charge of armed robbery could not stand. Her ladyship concluded, after referring to Telematrix as well as the judgment of the Constitutional Court in Le Roux v Dey:
“[23] What those decisions mean, in sum, is that a magistrate is not liable for his or her negligent conduct when performing his or her judicial functions, because for reasons of public and legal policy his or her conduct is not regarded as wrongful. The fact that the magistrate is immune from liability for his or her negligent conduct means there is no basis to hold any other party vicariously liable for such negligent conduct. That is so because vicarious liability is in general terms defined as the strict liability of one person for the delict of another. What it means is that a person may be held liable for the wrongful act or omission of another even though the former did not strictly engage in any wrongful conduct.[5] But, as liability is closely linked to the wrongful conduct of the primary wrongdoer it is inconceivable that there could be vicarious or secondary liability where there is no primary delictual liability.”

[15]	Her ladyship thus expressly upheld judicial independence immunity. The learned judge of appeal however acknowledged that magistrates are state employees under their contracts of employment, and did not overrule Van der Merwe, AJ on the issue that the Minister of Justice was in this sense, at least nominally, the employer.
[16]	Importantly, however, the learned judge of appeal also did not overrule Van der Merwe, AJ on his finding that the Minister of Justice was vicariously liable for magistrates who act maliciously, as Mr Naidoo for the plaintiff correctly submitted. There was no investigation at all into that issue, because the Supreme Court of Appeal had found that it was unnecessary to do so.  
[17]	That means that unless I can find that Van der Merwe, AJ was clearly wrong, I am bound by his judgment on this point. In my view the learned acting judge was not clearly wrong. And Penrice, by which this court is bound, is still good law.
[18]	There is, with respect, also every reason why that should be so. A magistrate is obviously not appointed to act maliciously, and so there is scope for the argument that when s/he acts maliciously, the magistrate is not acting in the course and scope of her/his employment. But it has long been accepted that the doctrine of vicarious liability does not rest on nice rules of the precise extent of the employee’s employment. Rather, it is a matter of public policy.
[19]	Courts have, in determining whether the employee was acting in the course and scope of his/her employment, oftentimes looked to see whether the employer had placed the employee in a position in which the employee was able to commit the wrong. 
[20]	The Supreme Court of Appeal (per Howie, JA) has said in this regard:
“[8]	The reason for the rule is often stated to be public policy. See for example, Salmond and Heuston on the Law of Torts 19th ed, 507. And an underlying reason for that policy has been held in Feldman (Pty) Ltd v Mall 1945 AD 733, in a passage at 741, to be the consideration that because an employer’s work is done “by the hand” of an employee, the employer creates a risk of harm to others should the employee prove to be negligent , inefficient or untrustworthy. The employer is therefore under a duty to ensure that no injury befalls others as a result of the employee’s improper or negligent conduct “in carrying on his work”. (Of course “the work” referred to in that passage is either that of the employer or the employee. It makes no difference. It the employee’s wrong is done within the course of the employment it will be also within the course of the employer’s business.)
[9]	The statement in Feldman of what one might term the “risk theory” was, in the majority judgment in Minister of Police v Rabie 1986 (1) SA 117 (A), taken not as a reason for the rule, but as another way of stating the rule itself. This mistaken view of the legal position was set right in Ngobo. In particular at 831 F - G (with reference to dicta in Carter & Co (Pty) Ltd v McDonald 1955 (1) SA 202 (A)) it was pointed out that the reason for the rule - whatever the reason may be - is not the same as the rule.
[10]	What seems to require continual emphasis, therefore, is that the rule and the reason for its existence must not be confused. The risk referred to, and considerations of public policy, have to do with the reason for the rule. They are not elements of the rule and they do not inform its content. It follows that unless the requirements of the rule are met, it cannot matter that it is the employee’s appointment and work circumstances that place the employee in a position to commit the wrong. It also cannot carry the day for a plaintiff that, without more, the employee’s acts involved in perpetrating the wrong are acts of a kind which the employee is normally authorised to perform and which, superficially, appear to forge a close link between the wrong and the employee’s duties. The question is always: were the acts in the case under consideration in fact authorised; were they in fact performed in the course of the employee’s employment?”

[21]	A magistrate who sits on the bench and makes an order or ruling with malicious intent, is thus in my view about the business of his/her employer, and is thus acting in the course and scope of her/his employment.  
[22]	Applied to the facts of the three remaining special pleas in this case, it follows that they also cannot be upheld. As to whether they should be postponed to see whether malice is actually proved, I agree that if malice is not proved, the plaintiff’s case will fail in any event, and against both defendants.
[23]	In the result I make the following order:
(a)	The defendants’ special pleas are dismissed, with costs.
(b)	The trial is postponed sine die.
WHG van der Linde
Judge, High Court
Johannesburg

For the plaintiff: Mr. Naidoo
Instructed by: Logan Naidoo Attorney
20A St John Road
Houghton
Tel: 011 487 1246
Ref: LN/TSO616/tn

For the first and second defendant: Adv. Nemuravhadi
Instructed by: The State Attorney
10th Floor, North State Building
95 Market Street
Johannesburg
Tel: 011 330 7674
Ref: Mr K Maile
         2366/15/P71/PH

Date of trial: 28 November, 2016
Date of judgment: 30 November, 2016