IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)

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

Case number: 10305/2017
Date of hearing: 8 October 2019
Date delivered: 25 October 2019

In the matter between:

SALIM KIGONGO OGWANG						Plaintiff

and

THE MINISTER OF POLICE						Defendant
JUDGMENT

SWANEPOEL AJ:
[1]	This is a claim for damages resulting from an assault on plaintiff by a person allegedly acting within the course and scope of his employment with the South African Police.

THE EVIDENCE
[2]	On the evening of 6 February 2016 plaintiff, a 38 year old musician, travelled from D.R. Tambo Airport in Johannesburg to George Airport where he collected his vehicle. He then drove to his hometown of Oudtshoorn. Just short of Oudtshoorn plaintiff noticed a vehicle following him. The vehicle had flashed its lights at plaintiff, apparently in an attempt to have him pull over to the side of the road.
[3]	Plaintiff did not know who was following him and so he drove to a well-lit municipal parking area in Langenhoven Road. He pulled over, not realizing at that stage that he had stopped in front of a house where there was a policeman present. It was somewhere between 20h00 and 21h00. When plaintiff alighted from his vehicle, he found that there were two persons in the following vehicle, both of whom were old friends of his. They greeted one another, and were standing talking when a man emerged from the house adjacent to the scene. It is common cause that this person was at all material times a policeman in the employ of the South African Police Services, although plaintiff was at that stage unaware thereof. The policeman's identity was never revealed to the Court.
[4]	Plaintiff testified that the man asked them what they were doing there, and that he tried to chase them off in very foul language. The policeman had a metal stave in his hand. He was wearing only a pair of trousers without a shirt or shoes. Plaintiff says that he tried to calm the policeman down, but when plaintiff turned to one of his friends to speak to him, the policeman assaulted him by hitting him with the metal stave once on the upper back. The policeman then hit him twice more, once on the top/front of his head, and once towards the top/back of his head, in line with his left ear. Both blows resulted in open bleeding wounds to plaintiff's head. Plaintiff says that he grabbed the stave and held on, all the while trying to placate the policeman.
[5]	Eventually a police vehicle arrived which caused the policeman to stop the attack. The policemen in the police vehicle identified plaintiff's assailant as a fellow policeman. It was only then, after the attack and when the policemen arrived at the scene, that plaintiff realized that the person who had attacked him was also a policeman.
[6]	Plaintiff then drove to the police station. He was bleeding profusely from the two head wounds. Having seen his injuries, the police told plaintiff to first go for treatment and then to return to lay criminal charges of assault. Plaintiff did so, and a case was opened against the policeman. In cross-examination plaintiff was asked whether he agreed that the police officer's attire suggested that he was off-duty at the time of the incident. Plaintiff said that he did not know whether the policeman was on duty or not.
[7]	The aforesaid was, in a nutshell, the evidence for the plaintiff on the merits of the matter. Plaintiff also called one Dr. Ngobeni to testify in respect of damages. For purposes of this judgment, her evidence is irrelevant. Plaintiff claims damages against defendant on the grounds that it is vicariously liable for plaintiffs damages as a result of the employer-employee relationship between defendant and the policeman. After plaintiff had testified, Mr. Engelbrecht SC closed plaintiffs case. Defendant sought absolution from the instance arguing:
[7.1]	That plaintiff bore the onus to prove that the police officer who assaulted him had been acting within the course and scope of his employment with defendant;
[7.2]	That there was no evidence that the police officer was on duty that night;
[7.3]	That the police officer was concerned by the noise outside the home late at night, and was motivated in his actions by a desire to chase off the noisemakers;
[7.4]	That none of the policeman's actions resulted from the employment relationship between the police officer and the defendant, and that it had thus not been proved that the police officer had acted within the course and scope of his employment with defendant.

[8]	Defendant has argued, on the basis of Stallion Security (Pty) Ltd v Van Staden [2019] ZASCA 127 (27 September 2019) that by employing the police officer, defendant had assumed the risk in respect of his conduct, and that there was thus a sufficient link between his conduct that night and his employment, that defendant is vicariously liable for plaintiff's damages. I will return to this argument later.
[9]	Having heard the respective arguments, I granted absolution from the instance, and I undertook to provide reasons later. These are my reasons for granting absolution.

VICARIOUS LIABILITY
[10]	Generally a person will only be held liable for damages suffered by another in instances where the person had committed a wrong. One of the exceptions to that general rule is found in the employer-employee relationship. Our Courts have long held that where an employee commits a wrongful act whilst he is acting within the course and scope of his employment, the employer is liable for damages resulting from such act. More specifically, where a wrongful act is committed by a member of the police force who is acting within the course and scope of his employment, the force has been held liable.
(See: Mhlongo and another NO v Minister of Police 1978 (2) SA 551 (A)

[11]	The question that has to be answered is: Was the wrongdoer acting "within the course and scope of his employment". This has been referred to in some authorities as the standard test: i.e. was the wrongdoer engaged in the affairs of his employer when the wrong occurred?
[12]	The different approaches adopted to this question were evident in Minister of Police v Rabie 1986 (1) SA 117 (AD). In this matter Van der Westhuizen, an off-duty mechanic in the police force who was clothed with the normal authority of a police officer, attended a party at the home of his erstwhile in-laws. At some point in time he was asked to leave, and when he came across Rabie on the street, he took his frustrations out on him. He accosted Rabie, accused him falsely of housebreaking, assaulted him, arrested him and had him detained at the police station.
[13]	In a minority judgement Van Heerden JA took the view that the State was not vicariously liable for Van der Westhuizen's conduct. He arrived at that conclusion by adopting a subjective approach. He took the view that "In particular there is no vicarious liability if the act of the employee is not performed for the accomplishment of an object for which he was employed, but in the furtherance of personal animosities." (at 130 I) Applying that test, Van Heerden JA came to the conclusion that if an employee commits a wrong for an ulterior motive personal to him, vicarious liability does not ensue.
[14]	In the majority judgment in Rabie Jansen JA postulated a two prong test:
[14.1]	Firstly, a Court has to establish what was the scope of the employment;
[14.2]	Secondly, what was the relationship between the act committed and the function that the person had to carry out.

[15]	Jansen JA eschewed a solely subjective test, and relying on Feldman (Pty) Ltd v Mall 1945 AD 733 at 774 joined with Greenberg JA in quoting the Salmond test with approval:
"a master .....is liable even for acts which he has not authorized provided that they are so connected with acts which he has authorized that they may rightly be regarded as modes- although improper modes- of doing them "

[16]	Jansen JA held that the underlying reason for holding an employer liable in matters such as these is as stated by Watermeyer CJ in Feldman (supra at 741):
"... a master who does his work by the hand of a servant creates the risk of harm to others if the servant should prove to be negligent or inefficient or untrustworthy; that, because he has created this risk for his own ends he is under a duty to ensure that no one is injured by the servant's improper conduct or negligence in carrying on his work "

[17]	In Feldman Tindall JA formulated the test (at 756 - 757) as follows:
"In my view the test to be applied is whether the circumstances of the particular case show that the servant's digression is so great in respect of space and time that it cannot reasonably be held that he is still exercising the functions to which he was appointed; if this is the case, the master is not liable. It seems to me not practical to formulate the test in more precise terms; I can see no escape from the conclusion that ultimately the question resolves into one of degree and in each particular case a matter of degree will determine whether the servant can be said to have ceased to exercise the functions to which he was appointed."

[18]	In Rabie the majority of the Court held that by appointing Van der Westhuizen as a police officer, and by clothing him with the powers of that position, the State created a risk of harm to others which rendered the State liable for his actions. The State was thus held liable for Rabie's damages.
[19]	The aforesaid majority judgment has come under some scrutiny and has attracted some criticism. In Minister of Law and Order v Ngobo 1992 (4) SA 822 (AD) Kumleben JA, writing for the unanimous court dealt with the proposition in Rabie that the liability of the employer is related to the creation of risk by the employment of the employee. The learned judge held that whilst direct liability may sometimes attach to an employer as a result of a risk created by him, that factor is not relevant when the standard test for vicarious liability is applied (at 832 C):
"However, in so far as Rabie's case may be said to have replaced the standard test with one based on creation of risk, I am for the reasons stated of the view that it was wrongly decided. Moreover, whatever direct liability may in certain circumstances attach to an employer as a result of risk created by him, this consideration in my opinion is not a relevant one to be taken into account when the standard test is to be applied in order to decide whether the master is vicariously liable."

[20]	The Court held that:
"Whilst one cannot gainsay the difficulty of applying the standard test in certain cases, the indeterminacy of the elements of the proposed alternatives suggests that their adoption would not make the task of determining liability any easier. In the circumstances there seems to me to be no sound reason for replacing a generally accepted principle with another, which is controversial and untried. "

[21]	Our new constitutional dispensation brought with it certain constitutional imperatives against which the application of the law of vicarious liability has to be considered, more especially when the actions of a police officer are in issue. Section 205 (3) of the Constitution of the Republic of South Africa, 1996 states that the object of the police force is inter alia to protect and secure the inhabitants of the Republic. Therefore, not only is the State vicariously liable for the wrongs of its police members when executed within the course and scope of their employment, it can also be held liable when they have failed to uphold its duty of care to protect the public. However, one should distinguish the vicarious liability of the State for the actions of police officers acting in the course and scope of their employment, from its liability arising from a duty of care. In the first, the State is liable for the actions of another, whilst in the latter case it is directly liable for its own failings.
[22]	In K v Minister of Safety and Security 2005 (6) SA 419 (CC) three on duty police officers encountered a young woman (“K") at a filling station in the early hours of the morning. The police officers were driving in an official police vehicle and were dressed in full uniform. The police officers offered to take K home, and she accepted. On the way the police officers overpowered and raped her. K sued for damages resulting from the rape. The Court accepted that K had accepted the lift in part due to the fact that she trusted the police and felt safe in their presence.
[23]	In K the Court considered various authorities in other jurisdictions before coming to the conclusion that the position in South African law as set out in Rabie is very similar to the approach adopted in other countries (at page 441 G). The test is focused both on the subjective state of mind of the employee, and whether he was intent on pursuing his own interests, but also on the objective question whether the deviant conduct was sufficiently connected to the master's business:
"The objective element of the test which relates to the connection between the deviant conduct and the employment, approached with the spirit, purport and objects of the Constitution in mind, is sufficiently flexible to incorporate not only constitutional norms, but other norms as well. It requires a court when applying it to articulate its reasoning for its conclusions as to whether there is sufficient connection between the wrongful conduct and the employment or not."

[24]	The Court held that the police force may be held liable vicariously for the wrongs of its members, but it may also simultaneously be liable for its employees' failure to fulfil their duty of care towards the public. The Court took the following factors into consideration in reaching the conclusion that the State was liable for damages:
[24.1]	The policemen all bore a statutory and constitutional duty to prevent crime and to protect the public;
[24.2]	The policemen had offered to assist K, and she had accepted their offer. She had placed her trust in the policemen although she did not know them.
[24.3]	The conduct of the policemen constituted a simultaneous commission (the rape) and omission (failing to protect K from harm).

[25]	Given the above, the Court held that these factors, and particularly K's constitutional rights and the State's constitutional obligations, brought the connection between the policemen's conduct and their employment sufficiently close to render the State liable:
"In sum, the opportunity to commit the crime would not have arisen but for the trust the applicant placed in them because they were policemen, a trust which harmonises with the constitutional mandate of the police and the need to ensure that mandate is successfully fulfilled. "

[26]	The dual nature of the test was emphasized in Minister of Finance and others v Gore 2007 (1) SA 111 (SCA). In this matter an employee of the Cape Provincial Administration conspired with others to commit tender fraud. This led to a claim against the Minister for damages. The nature of the fraud perpetrated by the State employee was the "very antitheses" of an act in the course and scope of his employment. Subjectively seen, it might be argued that the act was committed solely in the interests of the employee. However, it was argued that if the conduct, objectively viewed was sufficiently closely linked to the employer's business, liability may still be established.
[27]	In Gore (supra at 124 8) the Court a quo held that defendants failed on both grounds to demonstrate that they were not liable. Subjectively considered, the employee's intention was that the tender should be awarded to a specific tenderer. The effect of their subjective intentions was thus not wholly self-directed (see page 124 B). Objectively seen, the objectional conduct was closely aligned with the functions that the employee was employed to fulfil. Thus, on both a subjective and objective test, the employer was held liable.
[28]	In Minister of Safety and Security v F 2011 (3) SA 487 (SCA) the Court considered the various authorities on vicarious liability, more specifically Rabie, Ngobo, Feldman, and K. In this matter an off-duty (albeit on standby) policeman met up with F late one evening. She was stranded without transport to get home. The policeman offered her a lift, which she accepted, and on the way to her home he raped her.
[29]	Nugent JA, writing for the majority, took some issue with the introduction of the concept of "risk" into the test for vicarious liability. He wrote:
"Vicarious liability has a Jong but uncertain pedigree. In essence it may be described as the liability that one person incurs for a delict that is committed by another, by virtue of the relationship that exists between them. There are two features of vicarious liability in its traditional form that are trite, but they bear repetition. The first is that vicarious liability arises by reason of a relationship between the parties and no more - it calls for no duty to be owed by the person who is sought to be held liable. The second feature is that it is a secondary liability - it arises only if there is a wrongdoer who is primarily liable for the particular act or omission."

[30]	Nugent JA considered Rabie, and the criticism of the latter judgement in Ngobo, and held that the concept of "risk creation" has no place in the test for vicarious liability:
"While 'risk creation' might indeed be capable of giving rise to liability on the part of the employer, it was said in the passage from Ngobo, to which I referred earlier, that the true basis for liability in such cases is the failure of the employer, acting through the instrument of the employee, to fulfil the duty that is cast upon the employer to avoid harm occurring through the risk that has been created. For, on the traditional approach, vicarious liability arises from the existence of the relationship alone, and not from any failure of duty by the employer."

[31]	In considering the facts in K, Nugent JA took the view that the policeman had committed both a positive wrong by raping K, but also an omission, by failing to keep K safe from harm. Nugent JA held that in K the State was not held liable by virtue of the policeman's positive act, but by virtue of his omission, in other words, his failure to keep K safe.
By definition therefore, if the policeman committed a delict by omission, his employer would be liable for damages resulting from that omission.

[32]	On the issue whether the policemen in F had a duty of care towards the plaintiff, Nugent JA pointed out that the policemen had been off duty:
"I have no doubt that many police officers consider it their duty to exercise their police powers whenever they encounter a crime, and that is meritorious. But we are concerned in this case not with what is meritorious, but instead with whether they are legally obliged to do so. I can see no grounds for finding that a police officer is obliged to perform his or her ordinary functions when not on duty. Indeed, I think that the consequences of such a finding would be far-reaching indeed. Its effect would be to make the State a guarantor of good behaviour on the part of police officers at all times by virtue of their appointment. Without a duty to protect Ms F against harm - and thus personal liability for omitting to do so - there is no scope for secondary liability of the State for the omission to protect Ms

[33]	The Court held in F that the policeman had not purported to act as an instrument of the State in raping F, and that the State could not be held liable for his positive actions, and furthermore, that being off-duty, the policeman had no duty of care towards F. The appeal was upheld and the claim dismissed.
[34]	In my view this matter is comparable to the Ngobo matter where two off duty police officers, who were not in uniform, became embroiled in an argument with three civilians, as a result of which one person was shot and killed. The State was held not to be liable on the grounds that they were acting on their own frolic, and were not acting within the course and scope of their employment. The instant matter is also somewhat comparable to F (supra).
[35]	F appears to be somewhat out of step with the development of the law relating to vicarious liability in recent years, as is evident from the case of Stallion Security (Pty) Ltd v Van Staden (supra). This was a matter where Stallion was sued after one of its site managers (Khumalo) murdered the financial manager (Van Staden) of the company which it was contracted to protect. Khumalo had access to the customer's offices, even holding an override key to the premises. In November 2014 Khumalo, being aware that Van Staden often worked late, entered the premises with a view to robbing him. Van Staden could not produce sufficient cash for Khumalo's liking, and Van Staden ended up transferring R 35 000.00 of his own funds to Khumalo. Khumalo then escorted Van Staden from the premises. He later realized that Van Staden could identify him, which caused him to shoot and kill Van Staden.
[36]	The Stallion matter continued the development of the law of vicarious liability, as started by Rabie and continued in K (see paragraph 32):
"For these reasons our law as developed in Rabie and K, should further be developed to recognize that the creation of risk of harm by an employer may, in an appropriate case, constitute a relevant consideration in giving rise to a sufficiently close fink between the harm caused by the employee and the business of the employer. Whether the employer had created the risk of the harm that materialized must be determined objectively."

[37]	For obvious reasons the facts in Stallion are in conflict with the facts herein. Khumalo was specifically tasked to protect the customer and its employees. He gained access to the premises after hours simply because he had a key to the premises. He had the key due to his employment, and for no other reason. He had intimate knowledge of the workings of the customer's business, which allowed him to strike at an opportune time. There is no comparison between the facts in Stallion and the facts in this matter.
[38]	In this case there is no evidence that the policeman was on duty. In fact, the evidence suggests otherwise. He was at a private home, clad only in police trousers, and he left the property simply to put an end to the noise outside. At no stage, during the altercation, did the policeman purport to exercise any official power, for instance by placing the plaintiff under arrest, or by detaining him.
[39]	In my view the policeman in this matter was, subjectively speaking, not acting as a police officer. Objectively considered, his conduct was not sufficiently connected to his employment to render the State liable for damages. The State cannot be held vicariously liable for the conduct of the police officer.
[40]	For the above reasons I made the following order:
[40.1]	Absolution from the instance is granted with costs.

Swanepoel AJ
Acting Judge of the High Court,
Gauteng Division, Pretoria