CASE NO. CCT 25/2017 SCA CASE NO. 35/2016 EG CASE NO. 2915/2013
In the matter between:
ELSA BOOYSEN Applicant
(Respondent in the Court a quo)
and
MINISTER OF SAFETY AND SECURITY Respondent (Appellant in the Court a quo)
RESPONDENT’S PRACTICE NOTE
1. The names of the parties and the case number are as set out in the heading above.
2. This is an application for leave to appeal in which the Applicant seeks leave to appeal to this Honourable Court
against the majority judgment of the Supreme Court of Appeal in terms of which it was held that the Respondent was not vicariously liable for the actions of a reservist police constable who assaulted the Applicant by shooting her with a service pistol.
3. In accordance with the Directions issued by the Honourable Chief Justice dated 22 March 2017, argument on the application for leave to appeal is to incorporate argument on the merits of the appeal.
4. 4.1 The facts in the matter are largely common cause. A reservist police constable (“the deceased”) in the employ of the South African Police Services whilst on duty and in uniform shot and injured the Applicant with a service pistol which had been assigned to him on commencement of his duties on the day in question. The deceased and Applicant had not only been well acquainted with each other for a number of years but were also involved in an intimate relationship. The deceased was dropped off at the
house of the Applicant by a marked police vehicle in order for him to have his evening meal with the Applicant and her family after which he would again be picked up by the marked police vehicle. The deceased was present at the house of the Applicant when the incident occurred because of his intimate relationship with the Applicant and for no other reason. The Applicant related to the deceased as her boyfriend and not as a member of the South African Police Services. Neither the Applicant nor the Respondent (or employees of the Respondent) foresaw the possibility of the deceased acting in the manner in which he did.
4.2 It is and was at all times common cause that the circumstances amount to what has been described as the “deviation cases”.
4.2 At issue between the parties was and is whether the circumstances which are described above on proper application of the principles now clearly set out by
this Honourable Court in two seminal judgments are such as to sufficiently found the connection or link between the actions of the deceased and his employment in order for a finding of vicarious liability to follow.
5. On behalf of the Applicant, it is contended that, particularly the fact that the assault was committed with a service pistol assigned to the deceased together with the further factors of his being on duty, in police uniform and having been dropped off by a marked police vehicle, were sufficient to found the connection or link and to establish vicarious liability. This argument found favour with the Court of first instance and in the minority judgment in the Court a quo.
6. On behalf of the Respondent it was and is contended, it being common cause that the element of trust played no role whatsoever in the relationship between the deceased and the Applicant and the circumstances of the incident, the aforementioned factors relied upon, and particularly the fact that the assault was committed with the service pistol
assigned to the deceased, do not constitute a sufficient basis for drawing the relevant connection or link which would found a basis for vicarious liability on the part of the Respondent. It is argued that the circumstances, objectively considered and with due consideration of the relevant normative factors are not sufficient to found the link and that particularly to rely upon the mere issue of the firearm to the deceased and the risk thereby created as founding a basis for vicarious liability would amount to the imposition of strict liability rather than vicarious liability.
7. The portions of the record which, in the view of Counsel, are necessary for the determination of these issues are:
7.1. Pleadings and further particulars – Vol. 1, pages 1 to 29;
7.2. Minutes of pre-trial conferences – Vol. 1, pages 30 to 52;
7.3. Transcript of Court proceedings – Vol. 1, pages 54 to 68;
7.4. Judgment and Order of the Court of first instance – Vol. 1, pages 73 to 79;
7.5. Judgment of the Court of first instance in the application for leave to appeal – Vol. 1, pages 84 to 88;
7.6. Judgment of the Supreme Court of Appeal – Vol. 2, pages 104 to 126; and
7.7. Application for leave to appeal – Vol. 2, pages 128 to 156.
8. It is estimated that the duration of oral argument will not exceed two (2) hours.
SUMMARY OF THE ARGUMENT:
9. A summary of the argument is that:
9.1. The Applicant contends that, the circumstances of this matter, which involved a policeman on duty, dressed in police uniform, and armed with a police issue weapon, are sufficient to establish the link founding vicarious liability. It is further contended on
behalf of Applicant that at issue in the present matter is not whether the Applicant subjectively trusted the deceased or had a relationship with him, but rather whether the Respondent, having created a risk of harm to others by having armed the deceased with the means by which the crime was committed with direct intent, should be held vicariously liable.
9.2. In expanding upon this argument and with reference to what is contended are normative considerations, in paragraph 14 of Applicant’s argument, it is contended that, in the circumstances of this matter these are indeed sufficient to establish the relevant connection or link between the actions of the deceased and his employment such as to hold the Respondent vicariously liable.
9.3. On behalf of the Respondent, it is contended that the
“normative considerations” referred to are not sufficient to establish the link and to establish vicarious liability. The issue of firearms to members
of the South African Police Services is plainly something which is required for the proper fulfilment of their duties. It is not and was not suggested that the Respondent or its employees acted in anyway carelessly or inappropriately in issuing the firearm to the deceased. In fact, it was common cause that neither the Applicant nor the Respondent could have foreseen the actions of the deceased.
10. The Applicant, in pleadings, did not pertinently raise the issue of the creation of risk but pursued a case founded on an allegation that the deceased acted within the course and scope of his employment and in fulfilment of his duties.
11. It is argued on behalf of the Respondent that in these circumstances, the element of trust which played a pivotal role in the two seminal judgments of this Honourable Court in drawing the necessary link on which to found vicarious liability was patently and admittedly absent in the circumstances of this matter. It is argued further that absent that link, the foundation for a finding of vicarious liability was
not established.
12. It is argued further that to regard the issue of a service firearm to a member of the South African Police Services as the creation of risk which founds a basis for liability would amount to the imposition of strict liability rather than vicarious liability and would be inconsistent with established law and principles.
13. It is argued further that the imposition of liability in such circumstances could have unintended but far reaching consequences, not only for the Respondent but for others who by the nature of their activities must issue firearms to enable their employees to perform their duties.
14. Authorities on which particular reliance will be placed during oral argument are the following:
14.1. K vs Minister of Safety and Security 2005 (6) SA 419 (CC)
14.2. F vs Minister of Safety and Security and Others 2012 (1) SA 536 (CC)
14.3. Minister of Safety and Security vs Morudu and Others 2016 (1) SACR 68 (SCA)
E A S FORD S.C.
J J BESTER M N PANGO
Counsel for Respondent
