(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 ___________________________________________________________________
SUPPORTING AFFIDAVIT
___________________________________________________________________
I, the undersigned,
ELSA BOOYSEN
do hereby make oath and state that:
1. 1.1 I am a major female, who was the plaintiff in the court of first instance (being the Eastern Cape Division of the High Court) and the respondent in the court a quo (being the Supreme Court of Appeal).
1.2 The facts herein contained are within my personal knowledge and belief, unless otherwise stated or the context indicates otherwise, and are both true and correct.
1.3 Where I make contentions of a legal nature or present the history of this matter I do so on legal advice which I verily believe to be true.
2. The respondent in this application is the Minister of Safety and Security of the Republic of South Africa, nomine officio, who was the defendant in the court of first instance, and the appellant in the court a quo.
3. The primary issue for determination in this application and in the contemplated appeal to this Honourable Court relates to whether a policeman and servant of the respondent was acting within the course and scope of his employment with the respondent and / or whether the respondent should be held to be vicariously liable for damages in consequence of bodily injuries inflicted upon me by this servant.
4. The respondent has conceded all elements of delictual liability save for the issue of vicarious liability determined in my favour in the court of first instance in accordance with a judgment by Plasket J, a true copy of which is annexed hereto marked “EB1”.
5. In the court a quo the judgment of the court of first instance was reversed and the Supreme Court of Appeal held that the respondent was not vicariously liable on the application of applicable principles, including applicable normative factors, in accordance with the majority judgment which is annexed hereto marked
“EB2”. The judgment of the court a quo was not unanimous and there was a dissenting judgment from Bosielo JA.
6. In compliance with the requirements of Constitutional Court rule 19 (3) I state that:
6.1 The decision against which appeal is sought herein on the grounds set out below is the decision of the court a quo to the effect that the respondent is not vicariously liable for the conduct of its servant, being an on-duty police reservist who injured me during what was described as an “unfortunate domestic occurrence”, and the finding that there was an insufficient link between the wrongful conduct of the servant in question and the business of the South African Police Service (being his employer).
6.2 The constitutional matter which is raised for consideration in this application, and which will be raised for consideration in the appeal should the application be successful, relates to the application of all relevant considerations, and in particular the normative factors considered in a
constitutional setting of the Bill of Rights, in respect of vicarious liability on the part of servants of the State. In this regard I respectfully refer in particular to the ratio decidendi of the court of first instance and the minority judgment of the court a quo (of Bosielo JA).
6.3 The issues and principles applicable thereto have been extensively canvassed in the judgment in the court of first instance and in the judgment in the court a quo, and save that it will be argued that on applicable facts and in particular on the normative considerations which are applicable, that the wrongful conduct of the wrongdoer who was in police uniform at the time, on duty at the time, and who injured me with his service revolver, was sufficiently closely linked or connected to the business of his employer, to establish vicarious liability, no further issues or evidence will be raised in the appeal.
6.4 No other appeal or application for leave to appeal as contemplated in Constitutional Court rule 19 (3)(d) is competent or contemplated.
7. It is respectfully contended that the court a quo in the majority judgment erred:
7.1 In holding that, on the application of the evidence and relevant considerations, including normative factors, an insufficient linkage existed between the business of the employer of the wrongdoer (the South African
Police Services) and the conduct of the wrongdoer, so as to establish the vicarious liability of the respondent.
7.2 In not adopting the ratio decidendi set out in the judgment in the court of first instance or in the minority judgment in the court a quo.
7.3 In not holding that the application of relevant principles, and in particular the normative factors considered in the constitutional setting, required that the respondent be held vicariously liable for the unlawful conduct of the wrongdoer, in circumstances inter alia where he had assaulted me utilising a dangerous weapon provided by his employer (the respondent), while in official police uniform, while on duty, and while putting out to the public and all who saw him that he had the authority, and was due the respect and trust, due to a law enforcement functionary acting in accordance with constitutionally imposed obligations to inter alia protect the citizens of the Republic of South Africa.
8. It is respectfully submitted that reasonable prospects of success of appeal exist, and furthermore that there exist compelling reasons why the appeal should be heard, including the existence of conflicting judgments in respect of the issues raised herein.
9. It has been brought to my attention that the present application will have been initiated outside the period of 15 days as prescribed by uniform court rule 19 (2)
and in this regard I humbly seek condonation and appropriate extension of time in respect of the present application, in the following circumstances and on the hereunder grounds:
9.1 judgment of the court a quo was handed down on 9 December 2016, shortly before the customary Christmas vacation and Court recess.
9.2 I was contacted by my Attorney Mr. Swarts on 12 December 2016 requesting that I attend on his offices to discuss the outcome of the matter. I was only able to do so today as I did not have means to travel, my attorney having deposited a sum of money into my friend’s bank account to allow me to attend on his offices.
9.3 I am impecunious and the present matter is being conducted on a contingency basis by my attorneys. Upon full consideration of the effect of the judgment in the court a quo and in particular the dissenting judgment of Bosielo JA, a decision was finally made in January 2017 to bring the present application for leave to appeal, and a decision was made to seek and obtain the assistance of a fresh counsel previously not involved for the purpose thereof. Pursuant thereto the services of another counsel were obtained on 20 January 2017, and the present application prepared in the early part of the week commencing 23 January 2017.
9.4 While I regret any inconvenience caused to this Honourable Court by reason of the non-compliance with applicable time limits, I respectfully submit that the delay has in no way been in consequence of any culpable remissness on my part and that the delay will have been of relatively short order.
9.5 I submit that the issues in this matter are of considerable personal and public interest, and they require a definitive consideration by this Honourable Court.
10. In the premises of the aforegoing, I humbly seek the relief contemplated in the notice of application to which this affidavit is attached.
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ELSA BOOYSEN
The deponent has acknowledged that she knows and understands the contents of this affidavit which was signed and sworn to before me at on this day of 2017. In administering this oath the requirements of Regulation R1258 dated 21st July, 1972, as amended, have been fulfilled.
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COMMISSIONER OATHS
