Case CCT 25/17 
[2018] ZACC 18
Hearing Date: 22 August  2017

Judgement Date: 27 June 2018

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Wednesday 27 June 2018, the Constitutional Court handed down judgment in an application for leave to appeal against an order of the Supreme Court of Appeal (SCA). The case concerned a tragic incident in which Ms Elsa Booysen (the applicant) was shot and wounded by her boyfriend, Mr Johannes Mongo, an on duty constable reservist (the deceased) who at the time was in the employ of the South African Police Service (SAPS).

On the night of the incident, the deceased, in full police uniform and armed with his official firearm, was dropped off at the applicant’s home by a marked police vehicle to take a break and have dinner. This was the usual routine when the deceased was on night shift duty on a Friday and Saturday. The police vehicle would then return later to collect him in order to resume his duties. After dinner, the deceased and the applicant went to sit outside. Suddenly, the deceased drew his police firearm and shot the applicant in the face, before turning the gun on himself and committing suicide. The applicant sustained injuries to her face and these required hospital treatment.

Ms Booysen’s view was that the deceased had committed the offence during the course and scope of his employment with the Minister of Safety and Security (the respondent/Minister). As a result, she instituted an action in the High Court against the Minister for damages. The High Court held that the fact that the deceased had used his police firearm to shoot the applicant was decisive in determining liability, as the primary underlying purpose of the doctrine of vicarious liability is that an employer who creates a risk by giving responsibilities to its employees should be held liable for any harm that ensues as a result. The High Court held that, this purpose would be best served by acknowledging the risk created for members of the public when police officers are issued dangerous weapons as this could encourage stricter official control over the issuance of firearms to police officers. The High Court therefore held that there was a sufficiently close link between the deceased’s employment and his shooting of the applicant. It concluded that the Minister was vicariously liable for the damages suffered by the applicant.

Aggrieved by the decision, the Minister appealed to the SCA. The SCA held that there was not a sufficiently close link between the deceased’s employment and his shooting of Ms Booysen to justify holding the Minister vicariously liable for the damages suffered by Ms Booysen. The fact that the deceased and the applicant were not interacting as a policeman and a member of the public, but instead as romantic partners in a domestic setting, was central to the reasoning of the majority judgment. The SCA held that the fact that the offence was committed with a police issued firearm was not on its own sufficient to justify imposing liability on the Minister. It thus upheld the appeal by the Minister and set aside the order of the High Court. The minority judgment however held that the Minister should be held vicariously liable. It held that the Minister has the responsibility to ensure that employees of the SAPS are properly trained and disciplined, and that all members of the public are entitled to expect a professional and disciplined police service. If the police fail to execute their duties and abuse their police firearms, the responsibility for them as employees should fall on the Minister.

In this Court, the applicant sought leave to appeal against the decision of the SCA. The applicant submitted that leave to appeal should be granted because this Court has jurisdiction in this matter, as it raises the constitutional issue of 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 the servants of the State”. On the merits, the applicant argued that the SCA erred in its finding that there was no sufficient link between the SAPS and the conduct of the deceased for the purposes of establishing vicarious liability. The respondent argued that leave to appeal should be refused as the applicant had no prospects of success, or alternatively, if leave were to be granted, the application should be dismissed. The respondent argued that there is not a sufficiently close link between the deceased’s employment and his shooting of the applicant to impose vicariously liability, and to do so in this matter would essentially amount to strict liability.

Writing for the majority of this Court, Mhlantla J (Cameron J, Froneman J, Kathree-Setiloane AJ, Kollapen AJ, Madlanga J, Theron J, Jafta J and Zondi AJ concurring) held that the case as pleaded by the applicant failed to engage this Court’s jurisdiction. Jurisdiction is a threshold requirement, and for this Court’s jurisdiction to be engaged, the pleadings must demonstrate why the matter is either a constitutional issue or an arguable point of law of general public importance. The applicant had argued that the constitutional issue in the present case was the fact that the SCA had incorrectly applied the test for the imposition of vicariously liability in holding that the Minister should not be held vicariously liable. The majority held that the test for the imposition of vicariously liability is an established legal test in our law, and numerous cases have held that the mere application of an established legal test does not amount to a constitutional issue for the purposes of engaging this Court’s jurisdiction. Counsel for the applicant did not argue that this matter raised an arguable point of law of general public importance which ought to be decided by this Court. Since jurisdiction is a threshold requirement and the applicant had failed to meet that threshold, the majority concluded that it was not necessary to deal with the merits of the applicant’s case. The majority therefore dismissed Ms Booysen’s application for leave to appeal.

In a dissenting judgment Zondo DCJ disagreed with the majority judgment that the matter did not raise a constitutional issue and that, therefore, the Constitutional Court had no jurisdiction to entertain it. The Deputy Chief Justice took the view that this matter did raise a constitutional issue, inter alia, because:

(a) in shooting and injuring the applicant for no valid reason, Mr Mongo violated the applicant’s right to freedom and security of the person, including the applicant’s right to be free from all forms of violence entrenched in section 12(1)(c) of the Constitution.

(b) in Mashongwa, where this Court had to decide whether the Passenger Rail Agency of South Africa (PRASA) was liable for the injuries suffered by Mr Mashongwa when he was thrown out of a moving train, this Court held that it had jurisdiction by virtue of Mr Mashongwa’s right to freedom and security of the person entrenched in section 12(1)(c) of the Constitution and the same applies to this case.

(c) in this case this Court is required to decide whether the Minister of Police is vicariously liable for Mr Mongo’s wrongful conduct; the determination of that issue depends upon whether in terms of the second leg of the so-called Rabie test, as developed in this Court’s judgment in K, it can be said that there was a close connection between Mr Mongo’s wrongful conduct and his employment as a police officer; in its judgments in K, Luiters and F this Court has held that deciding that leg of the Rabie test involves considering the victim’s constitutional rights, the perpetrator’s constitutional obligations and the value of the Constitution.

Zondo DCJ also held that leave to appeal should be granted because the matter raised important issues, there had been conflicting judicial decisions in the case and there were reasonable prospects of success. With regard to the merits, Zondo DCJ concluded that the Minister of Police should be held vicariously liable for Mr Mongo’s wrongful conduct because there was a close connection between that conduct and Mr Mongo’s employment as a police officer. The Deputy Chief Justice said some of the factors which showed that connection were the following:

(a) Mr Mongo was on duty at the time of the shooting;

(b) Mr Mongo was wearing a police uniform at the time of the incident;

(c) the fact that Mr Mongo was a police officer facilitated Mr Mongo’s access to the service pistol he used to shoot the applicant;

(d) being on duty during the evening in question enabled Mr Mongo to have access to a police vehicle which transported him to the applicant’s place of residence, where he shot the applicant;

(e) the arrangement that a police vehicle would pick Mr Mongo up after he had had dinner with the applicant also facilitated his going to the applicant’s place in the knowledge that there was to be a car to pick him up later;

(f) the only reason why Mr Mongo was carrying the firearm that he used to shoot the applicant was that he was a police officer;

(g) as a police officer, Mr Mongo was allowed to use the firearm under certain circumstances but on this occasion he used it in circumstances in which he was not authorised or allowed to use it; and

(h) Mr Mongo had constitutional and statutory obligations to protect the applicant and to prevent harm towards her (i.e. the simultaneous omission and commission factor).

The Deputy Chief Justice would have upheld the appeal, set aside the decision of the SCA and restored the order of the High Court and ordered the Minister of Police to pay the applicant’s costs. 

The Full judgment here.