IN THE HIGH COURT OF ESWATINI
Held at Mbabane Case No.: 292/2015
In the matter between
NOMSA NTOMBIZONKE MAMBA 1ST Plaintiff
AND
THE COMMISSIONER OF HIS MAJESTY’S CORRECTIONAL SERVICES 1st Respondent
THE ATTORNEY GENERAL 2nd Respondent
Neutral Citation: Nomsa Ntombizonke Mamba Vs The Commissioner of His Majesty’s Correctional Services And Another (292/2015) [2019] SZHC 118 ( 28th June 2019)
Coram: Hlophe J.
For the Applicant: Mr S. Mngomezulu
For the Respondent: Mr M. Vilakati
Date Heard: 4th April 2019
Date Judgement Delivered: 28th June 2019
Summary
Civil Law – Action Proceedings – Delictual claim – Vicarious liability – Deviation from the employer’s mandate – Underlying Principles – Whether Defendants liable to compensate Plaintiff over the killing of her daughter by Defendant’s employee who used a firearm he had been issued with for purposes of escorting prisoners to appear in court – The said employee driving the First Defendant’s car to a place some 7 kilometres away and there at killing the Plaintiff’s daughter – Plaintiff instituting the current proceedings claiming compensation for the loss occasioned by her daughter’s death.
JUDGMENT
[1] The Plaintiff instituted action proceedings against the Defendants claiming a sum of E250 000.00, made of trauma, emotional shock and discomfort; loss of support, future support as well as loss of emotional support and affection. These claims were accompanied by further claims for interest and costs.
[2] The claim arises from an incident on the 29th August 2013 in which the First Defendant’s employee by the name of Bongani Kunene (Kunene) shot and killed the daughter to the Plaintiff one, Nokuthula Excellent Dlamini (Nokuthula) at an area known as Luhlangotsini situated about 7-10 kilometres from the Pigg’s Peak town. The pleadings further reveal that the said Kunene also killed himself after shooting dead Nokuthula, who was apparently his girlfriend.
[3] The reality is that at the time of the incident, Kunene was employed by the First Defendant as a warder. It is not in dispute that on the fateful day Kunene had been detailed as a warder to ensure or provide security outside the Pigg’s Peak Magistrate Court, where some inmates had been taken to for the hearing of their cases. To effectively perform his said duties, Kunene had been issued with a service riffle by his employer, the First Defendant.
[4] It is not in dispute that whilst providing security outside the Pigg’s Peak Magistrate’s Court as detailed, Bongani Kunene left his post and drove his motor vehicle to Luhlangotsini area, some 7-10 kilometres away. Upon arrival there, he shot and killed Nokuthula Excellent Dlamini, the Plaintiff’s daughter, after which he killed himself. This he did using the service riffle issued him by his employer.
[5] This incident prompted the Plaintiff to institute the current proceedings claiming the amount referred to above under the applicable heads mentioned thereat. The basis of the Defendant’s alleged liability was the notion of vicarious liability it being contended the said Bongani had killed the deceased during the course and scope of his duties. In particular it was contended that Kunene had deviated from his mandate of providing security to the Magistrate’s Court.
[6] The Defendants defended the matter. They denied liability to the Plaintiff’s claim. In particular they denied that the late Bongani Kunene was acting within the course and scope of his employment by the Defendants. The Defendants contended that Bongani Kunene had left his designated post without being relieved thereby disengaging himself completely from his employment and went on to promote his own interests exclusively. It was contended further that the killing of the Plaintiff’s daughter was too remote from the Defendant’s business attended by Kunene which was about the provision of security outside the Pigg’s Peak Magistrate’s Court.
[7] When the matter came up for trial on the 26th July 2019, it was, upon realizing that the facts were mainly common course, agreed that the leading of witnesses orally be dispensed with and that instead, a stated case as envisaged in terms of Rule 33 be prepared by consent and handed up to court after which submissions would have had to be made. The statement was prepared and taken to be embracive of the material facts and to amount to the evidence before court. The statement in question was signed by the parties counsel on the 17th July 2018. Submissions were eventually made on the basis of which this court had to decide the liability or otherwise of the First Defendant.
[8] The statement signed by the parties counsel provided as follows:-
Stated Case In Terms Of Rule 33. Agreed Facts:
1. On the 29th August 2013, S/No.3161 Warder Bongani Kunene, an employee of the Defendants, was detailed by the First Defendant to escort inmates to the Pigg’s Peak Magistrate’s Court.
2. Bongani was detailed to be in the outside patrol providing security outside the court house.
3. The Defendants issued Bongani Kunene with an R4 riffle loaded with 10 live rounds of ammunition.
4. Bongani Kunene left his post without being relieved. He drove his own Motor Vehicle to Luhlangotsini area which is around 7-10 kilometres from the court house.
5. At Luhlangotsini Bongani shot and killed Nokuthula Excellent Dlamini, the Plaintiff’s 20 year old daughter.
6. Bongani Kunene used the Defendant’s rifle and ammunition to kill the Plaintiff’s daughter and he was dressed in the first Defendant’s uniform. Subsequent to killing the Plaintiff’s daughter, he took his own life.
7. As a result of her daughter’s death, the Plaintiff suffered emotional shock, grief and trauma.
Issue For Determination
8. Whether at the time he killed the Plaintiff’s daughter, Bongani Kunene was acting within the course and scope of his employment with the Defendant.
The Parties’ Contention
9.1 The Plaintiff contends that Bongani Kunene was acting within the course and scope of his employment by the Defendants.
9.2 The Defendants contend that Bongani Kunene was acting in furtherance of his personal interests and there was no sufficiently close link between Bongani’s interests and the business of the Defendants.
Quantum
10. The issue of the quantum, if necessary shall be determined separately from liability.
_____________ ___________________
D.M. Dlamini M.M. Vilakati
For: The Plaintiff For: The Defendants
[9] I agree with the Defendant’s contention that vicarious liability is a common law doctrine, which holds an employer liable for delicts committed by his employees in the course and scope of their employment. In terms of this doctrine, an employer is held liable for the acts or actions of his employee without any fault on his part, contrary to the common law principle which contends that there can be no liability without fault whether in the form of negligence or intention.
[10] The position of our law is settled that an employer would be vicariously liable in simple and straight forward cases where liability cannot be disputed because the act complained of is a direct consequence of his conduct just as he would be liable in cases where the employee may have deviated from the mandate of his employer, resulting the consequence complained of.
[11] The parties in this matter are in agreement that it is about the employee having deviated intentionally from his employer’s mandate. The position of our law is now settled as confirmed by several authorities or previous judgements that the intentional deviation by an employee from his employer’s mandate is not a bar to the employer’s liability for the actions of the employee concerned. See in this regard such cases as Feldman (PTY) LTD v Mall 1945 AD 733 and Minister of Police V Rabie 1986 (1) SA 117 (A).
[12] In Feldman (PTY) LTD v Mall 1945 AD 733 an employee who had been detailed by his employer to distribute certain parcels through the use of the latter’s motor vehicle which he was required to surrender to a certain garage after completing his mandate, deviated therefrom by driving the motor vehicle to a destination outside his mandate was around a 100 kilometres away. Whilst there he took some alcoholic beverages whose effect was to render him incapable of driving the motor vehicle safely. Whilst driving back to handover the car to the garage he had been directed to, he negligently collided with and killed the father of two children. An action for the loss of support was instituted against the employer. The court came to the conclusion that irrespective of the deviation by the driver or employee from his mandate, the employer was vicariously liable to pay the claimant the amounts claimed for the loss of support.
[13] On the other hand in Minister of Police V Rabbie 1986 (1) SA 117 (A) a police officer who was off duty and not in uniform, purported to effect an arrest against a member of the public under the guise he had committed a break in at a certain house. The said police officer went on to assault the member of the public concerned under the guise of effecting an arrest. The said member of the public was subsequently taken to a police station whereat he was locked up. It later transpired that in reality the police officer concerned was not genuine in his aforesaid actions. He arrested the member of the public in abuse of power as a Police Officer and because he was getting even with him. The court eventually concluded that the employer was vicariously liable for the actions of the police officer after the employer was sued for damages based on the police officer’s unbecoming conduct. This decision had been sustained on appeal.
[14] The fact that an employee was actually acting in furtherance of his own interests does not necessarily bar his employer from being liable. This principle was captured in the following words in Mashudu Fhedzisani V Unitrans Limited t/a Greyhound and Another Civil Case No.18952/2010 (a case I have been referred to by the Plaintiff’s Counsel:-
“A servant may even omit to do his master’s work, and if such omission constitutes a negligent or improper performance of his master’s work and causes damages, the master will be legally responsible for such damage. Consequently a servant can act in disobedience of his instructions and yet render his master liable for his acts.”
[15] Although the employee in this matter (Bongani Kunene) was acting outside instructions when he went to kill the deceased (Nokuthula Excellent
Dlamini), his employer could still be held responsible as long as a link can be found between his conduct and his employment. The Plaintiff wants to say this link was there whilst the Defendants want to say it was not there.
[16] It was argued by the Plaintiff’s Counsel that there was such a link and that it was in the form of the service riffle (the R4) with which Kunene as the employee of the First Defendant had been issued. It was submitted that this was because had the First Defendant not armed the employee with that firearm, it would not have been used kill the Plaintiff’s daughter. Extending the argument, it was contended that the employer in this matter had created a risk of harm to others for which he had to put in place a mechanism to ensure that members of the public were not injured by the employees improper conduct or negligence in carrying out his work. To this extent the Plantiff’s Counsel referred to the following extract from the judgement in The Minister Of Defence V Leon Marius Van Benecke Civil Appeal Case No.115/2012, Supreme Court of South Africa, Page 7 at Paragraph 24, which shows how matters like the present are reasoned by the courts:-
“The Defence force is in this statutory context, a special kind of employer with a relationship towards its employees and the public which requires an approach to liability for the wrongful acts of those employers which is different from that of an ordinary civilian employer. Its proper function requires it to possess quantities of dangerous weapons which cannot be permitted to escape into the hands of the public and, especially, the criminal element of the population, and it has the resources to prevent that happening and the powers necessary to do so. It has the duty to educate its employees in the disciplines required to minimize that risk. It goes without saying that because of the enormous potential for public harm inherent in the inadequate preservation and control of the arms, the Department (through its responsible minister) should not in general be able to avoid liability for wrongful acts of commission or omission of employees that it has appointed to carry out its duties to preserve and control arms.” (underlining added)
[17] At Paragraph 25 of the same Minister of Defence V Leon Marius Van Benecke (Supra) Judgement the court had the following to say which is apposite herein:-
“It is the most probable inference that the opportunity to make away with them arose from the opportunity provided by the scope of his duties without which he would have possessed neither access to them nor the knowledge of the means to avoid such security controls as the defence force must have put in place.”
Clearly it was the training in the usage of the riffle and the knowledge of his operations at work which gave Kunene the opportunity to slip away undetected and be able to do the damage he did. In the cases cited herein the employer has been found liable in such situations.
[18] In Feldman (PTY) LTD V Mall 1945 AD 734 at 741, the basis of the liability in deviation cases was put as follows:-
“A master who does his work by the hand of a servant creates a 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 and that the mere giving by him of directions or orders to his servant is not sufficient performance of that duty. It follows that if the servant’s acts in doing his master’s work or his activities incidental or connected with it are carried out in a negligent or improper manner so as to cause harm to a third party the master is responsible for that.”
[19] In the matter at hand the employee who had been given a service riffle by his employer to look after prisoners or inmates at the Pigg’s Peak Magistrate’s Court left his post by his own car to a place some 7-10 km away and there at shot dead the Plaintiff’s daughter after which he then shot himself. There is no doubt that he would not have used that service riffle against the Plaintiff’s daughter had his employer not issued him with one. If further follows that had the First Defendant put in place a mechanism to ensure that his said employee would find it difficult if not impossible to escape with the riffle, the incident complained of would again not have occurred. It is clear therefore in my view that the employee taking with him the rifle to effect the damage he did with it, was a case of the employee acting improper or in an untrustworthy manner towards his employer which however had the result of the ensuing damage being attributed to the First Defendant as his employer, in law. The effect of this, in line with the principle enunciated in the Feldman (PTY LTD Vs Mall case (Supra) among others is that the First Defendant as the employer could not escape liability for the consequences of the unbecoming act to the acts done by Kunene. The same principle was advanced in Minister of Police V Rabie 1986(1) SA 117 whose facts have been cited above.
[20] To this end I have come to the conclusion that the Defendant is liable to the Plaintiff. I therefore have to revert the matter to the parties for a possible settlement on the question of damages, acknowledging that if they are unable to resolve same amicably, the matter may be set down to be dealt with in a manner that resolves the question of the quantum.
______________________
N. J. HLOPHE
JUDGE – HIGH COURT
