(HELD AT JOHANNESBURG) CASE NO.
SCA CASE NO. 35/2016 EG CASE NO. 2915/2013
In the matter between:
ELSA BOOYSEN Plaintiff in the Court of first instance APPLICANT
and
MINISTER OF SAFETY AND SECURITY Defendant in the Court of first instance RESPONDENT
ANSWERING AFFIDAVIT
I, the undersigned
Johannes Hendrik van ROOYEN
do hereby make oath and state that:
1. I am an adult male currently employed by the Applicant as Major and Commander of Civil Litigation, Grahamstown. I have direct control over all litigation conducted on behalf of and against the Applicant within the Eastern Cape Province and I am duly authorised to depose to this affidavit on behalf of the Respondent and in opposition to the relief sought by the Applicant.
2. The facts contained herein are within my personal knowledge and belief, unless the context indicates otherwise and are both true and correct. Where I make allegations of a legal nature, I do so on the advice of my legal representatives, which advice I believe to be correct.
3. From the outset I wish to make it clear to the above Honourable Court that the Respondent does not intend to oppose the Applicant’s application for condonation for the late filing of her application for leave to appeal and will abide by the decision made by this Honourable Court in relation thereto. Respondent does however oppose the application for leave to appeal and the merits of the appeal on the grounds dealt with hereunder.
4. I have read the Applicant’s affidavit in support of its application and wish to respond thereto as follows where necessary and appropriate:
AD PARAGRAPHS 1 – 6 THEREOF:
5. The contents of these paragraphs have been noted.
AD PARAGRAPHS 7 – 8 THEREOF
6. The allegations contained in these paragraphs are denied. It is specifically denied that the court a quo in the majority judgment erred on the grounds referred to by the Applicant or at all.
7. It is with respect clear from the majority judgment in the court a quo that the evidence and facts were applied correctly to the relevant principles and in particular the normative factors considered in a constitutional setting.
8. It is further clear that the reasoning and conclusion reached in the majority judgment of the court a quo is unassailable and accordingly the Applicant’s prospects of success on appeal and of this Honourable Court reaching a different conclusion on appeal are poor.
9. A finding of vicarious liability of the Respondent in light of the facts of this matter, where there was no element of trust in the employee of the Respondent to act in his official capacity and in the furtherance of his employment would lead to strict liability, which should and could never
have been intended. Accordingly the finding by the majority judgment in the court a quo that an insufficient linkage existed between the business of the employer of the wrongdoer and the conduct of the wrongdoer so as to establish vicarious liability on the part of the Respondent, cannot be faulted.
10. Furthermore, I believe that the submissions made by my legal representatives on the vicarious liability of the Respondent and which are recorded in the majority judgment of the court a quo are clear.
Accordingly, the Respondent stands by those submissions as made and recorded in the majority judgment of the court a quo.
11. In the premises, the Respondent humbly seeks an order refusing the Applicant’s application for leave to appeal, with costs.
SWORN TO BEFORE ME AND SIGNED in my presence
at……….. on this day of 2017, the deponent having declared that he knew and understood the contents of this affidavit, that he had no objection to taking the prescribed oath and that he
considered the prescribed oath to be binding on his conscience. The oath has been administered in accordance with the regulations published in Government Notice R1258 printed in Government Gazette No. 3619 dated 21 July 1972, as amended, and promulgated in terms of Act No. 16 of 1963.
