Vicarious liability examined: Delictual claims deviation

Darcy du Toit’s latest Editorial Vicarious liability: the last word? published in IR Network by LexisNexis [subscription required] is interesting and these are some excerpts relating to this ConCourt judgment.  There is reference to the high court judgment of Nel J in Grobler and it should be noted that the employer did not succeed when it appealed that judgment: see

Media 24 Ltd v Grobler (301/2004) [2005] ZASCA 64; [2005] 3 All SA 297 (SCA) (1 June 2005) per Farlam JA

“[1] Delict – Claim for damages – Sexual harassment at workplace – Employer’s vicarious liability – Where employer failed to respond to complaints of harassment, it was in breach of its common-law duty to create and maintain a working environment in which, amongst other things, its employees were not sexually harassed by other employees in their working environment.

[2] Employment – Sexual harassment at workplace – Claim for damages – Employer’s vicarious liability – Where employer failed to respond to complaints of harassment, it was in breach of its common-law duty to create and maintain a working environment in which, amongst other things, its employees were not sexually harassed by other employees in their working environment”.

Excerpts from Du Toit’s Editorial

“The question when an employer can be held vicariously liable for a wrongful act by its employee has given rise to much litigation. S exual harassment committed by employees has often been the issue. Even more appalling is the number of cases involving rape and other violent crimes committed by members of the South African Police Service against members of the public whom they are bound to protect.

. . . . .

In brief, vicarious liability arises where an employee commits a delict (wrongful act) within the course and scope of his or her employment. Whether an act is wrongful is usually clear enough, but the second element – whether it took place in the “course and scope” of the employee’s duties – can be controversial. in turn, can be broken down into two questions:

• First, did the employee act purely in his or her own interests or was he/she promoting the employer’s interests? If the latter, the employer is clearly liable.
• But, if not, a second question arises: was the employee’s wrongful act, even though it was unauthorised, sufficiently closely connected to the employer’s business for the employer to be held responsible?

. . . . .

In other words, it is not the function of the Constitutional Court merely to assess whether a lower court had correctly applied the existing law. In the case of vicarious liability, it can be asked to judge whether the common law rule is unconstitutional or raises issues of public importance and, if so, whether it must be developed to cure the defect. But it cannot do so of its own motion. It is up to litigants to plead the issues which bring their case within a court’s jurisdiction.

. . . . .

What the Constitutional Court did emphasise was that the two-stage inquiry for establishing vicarious liability, outlined above, “is now an established legal test” (para 62) and that different “factors”, depending on the circumstances of each case, must be weighed up to determine whether its “requirements” are met. The risk created by the employer and its contribution to Ms Booysen’s injury was one factor which all three courts considered but, in the final analysis, it was found to be outweighed by the absence of “trust” on Ms Booysen’s part in Mongo as an SAPS member.

. . . . .

But the fact that the court nevertheless raised the possibility of examining the “established legal test” for vicarious liability, provided the question is pleaded, is interesting. The principle of vicarious liability is of major importance to employers as well as the public at large. It matters to employers because it threatens them with financial and reputational damage arising from unauthorised conduct by employees. It matters even more to those who suffer injury at the hands of employees who, in almost all cases, will lack the resources to compensate them. Suing the employer may be the only possibility of putting their lives together again”.

Delict — vicarious liability — deviation case — police officer — domestic violence — police firearm

Note: Footnotes omitted and emphasis added

Introduction

[1] This is an application for leave to appeal against an order of the Supreme Court of Appeal. This case concerns a tragic incident in which Ms Elsa Booysen (the applicant) was shot and wounded by her boyfriend, Mr Johannes Mongo, a constable reservist (the deceased) in the employ of the South African Police Service (SAPS).

[2] The applicant seeks to hold the respondent, the Minister of Safety and Security (Minister), vicariously liable for damages arising out of the incident. She was successful in the High Court, which held that vicarious liability should be imputed to the Minister. The Minister then appealed to the Supreme Court of Appeal, which overturned the judgment of the High Court. The applicant now applies to this Court for leave to appeal.

[3] The issues for determination are:

(a) Should leave to appeal be granted?
(b) If so, should the Minister be held vicariously liable for the damages suffered by Ms Booysen?

Factual Background

[4] The applicant and the deceased grew up together in Pearston, in the Eastern Cape Province. They eventually came to be involved in an intimate relationship.

[5] Before the High Court, the applicant testified that she had known the deceased for many years and confirmed that they were involved in an intimate relationship and that she fell in love with a private individual and not a policeman. At the time they had been in the relationship for less than a year.

[6] On 22 March 2013, the deceased was on night shift duty. He was dressed in his full police uniform and armed with a service pistol. The pistol had been issued to him by the shift commander at the commencement of his shift. He had been assigned crime prevention duties and was required to attend to complaints by members of the public.

[7] That night, the deceased was dropped off at the applicant’s home by a marked police vehicle. He had gone there to have dinner, as was his routine when he was on duty on Friday and Saturday nights. After he had eaten, the police vehicle would collect him and he would continue with his shift duties.

[8] Initially, there appeared to be nothing unusual about the evening. The deceased went to buy some soft drinks from a nearby shop. On his return, he offered these to the applicant and her family. After supper, he and the applicant sat outside together. Suddenly, and without warning, the deceased drew his service pistol and shot the applicant in the face. He then turned the firearm on himself and committed suicide. The last words uttered by the deceased were to the effect that, if he could not have the applicant, then nobody else could. The applicant testified that she and the deceased had not argued before the incident and they did not have problems in their relationship.

[9] As a consequence of the gunshot, the applicant sustained injuries to her face. She was admitted to Livingstone Hospital in Port Elizabeth where she received medical treatment.

Vicarious liability in our courts

[10] Before detailing the judgments of the lower courts in this case, it is helpful to briefly set out the accepted common law test for vicarious liability in deviation cases.

[11] The test to be applied when determining whether vicarious liability should be imposed in these cases was first set out in Rabie. It was later expanded upon in K, and further explored in F. The test essentially consists of two questions:

• first, whether the employee committed the wrongful acts solely for his or her own interests or those of the employer (the subjective question); and
• second, if he or she was acting for his or her own interests, whether there was nevertheless a “sufficiently close link” between the employee’s conduct and the business of his employment (the objective question).

The expansion of this test in K and F is detailed below.

K v Minister of Safety and Security

[12] In K, Ms K was left stranded at a petrol station without transportation to her home and without any means of calling her family after a disagreement with her boyfriend. Ms K was 20 years old at the time. A policeman, Sergeant Nathaniel Rammutle, came to the petrol station driving an official SAPS vehicle. Sergeant Rammutle approached Ms K and asked her where she was going. She answered and said she wanted to go home. He then offered to take her home and she accepted his offer. She climbed into the vehicle and found two other policemen, Sergeant Ephraim Gabaatlholwe and Sergeant Edwin Nqandela, who were also both in uniform. All of the police officers were on duty at the time.

[13] She fell asleep for a short while and when she woke up, the car took a turn in the wrong direction. A police jacket was thrown over her head and was held tightly so that she would not see where the car was going. The car stopped and she was forced to the back seat of the car. She was raped by the three police officers in turn. After raping her, they threw her to the ground and drove away swiftly. Ms K sought damages against the Minister. Both the High Court and the Supreme Court of Appeal held that the Minister could not be held to be vicariously liable for the conduct of the police officers.

Ms K then appealed to this Court, arguing that the Supreme Court of Appeal erred in its application of the common law test; and that if it did not err in its application of the test, that the test should be developed in line with section 39(2) of the Constitution as the outcome of her case did not accord with the spirit, purport and objects of the Constitution.

[14] In a unanimous judgement, O’Regan J, in finding for Ms K, held that a court must bear in mind constitutional norms when deciding whether the case before it is in principle one in which the employer should be held liable. To determine whether the Minister was vicariously liable, the Court applied the two-stage common law test for liability set out in Rabie, while simultaneously developing it to take into account constitutional norms.

[15] On the first leg of the test, O’Regan J held that the three police officers had been acting in pursuit of their own interests when they raped Ms K. It was in applying the second leg of the test that the Court developed the common law. It held that a court should promote constitutional values in an assessment of the presence of a sufficient link. It should do so through expressly articulating the normative considerations at play in its reasoning for its conclusion as to whether there is a sufficient connection between the wrongful act and the employment.

The Court held that the Minister was vicariously liable on the basis of the presence of several factors that demonstrated that the conduct of the police officers was sufficiently close to their employment. These were:

(a) The police officers all bore a statutory duty to prevent crime and protect members of the public. That duty also rested on their employer and the police officers had been employed to perform that obligation.
(b) The police officers had offered to assist Ms K and she had accepted their offer. She thus placed her trust in them. In determining whether the Minister was liable, the Court had to keep in mind the importance of the constitutional role entrusted to the police and of nurturing confidence and public trust in the police to ensure that their role was successfully performed.
(c) The conduct of the police officers had constituted both a commission and an omission: the brutal rape of Ms K and the failure to protect her from harm respectively.

F v Minister of Safety and Security

[16] In F, Ms F needed and was offered a lift home by Mr van Wyk after a night out. She was 13 years old at the time. There were two other passengers in the vehicle. One of them was known to her. At the time, Mr van Wyk was employed as a police officer by the SAPS and during that evening was on standby duty which meant that he could have been called upon to attend to any crime-related incident if the need arose. He was in an unmarked police vehicle to enable him to perform any police functions that he might have been required to perform whilst on standby duty.

[17] After the other passengers had been dropped off at their respective homes, Ms F moved to the front passenger seat, at Mr van Wyk’s request. It was then that she saw a pile of police dockets bearing the name and rank of Mr van Wyk. When she asked him why there were police dockets in his vehicle, he replied that he was a private detective. Ms F understood this to mean that he was a police officer. In her evidence, she said that the fact that she believed Mr van Wyk to be a police officer played a role in allaying her fears, because she “trusted” him as, at that stage, she thought he was a detective. She chose to repose her trust in a person of whom she would ordinarily have been suspicious because she understood him to be a police officer.

[18] While on their way to her home, Mr van Wyk unexpectedly turned off the road and stopped in a dark place. Ms F became suspicious and alighted from the vehicle, pretending that she needed to relieve herself. She then ran away and hid in an attempt to escape. After a short while, Mr van Wyk left. Ms F then came out of her hiding place and stood on the side of the road and tried to hitchhike. A car pulled up to her, and it turned out to be Mr van Wyk again. Ms F reluctantly accepted Mr van Wyk’s offer for a lift due to her desperate situation. On their way to her home, Mr van Wyk pulled off the road again and was able to prevent her from fleeing this time around. He then assaulted and raped her. Thereafter, he took her to her home and threatened to harm or even kill her should she tell anyone about the incident.

[19] Ms F launched proceedings against the Minister in the High Court, where she was successful. The High Court’s decision was then overturned by the Supreme Court of Appeal, and Ms F appealed to this Court.

[20] The decision in F affirmed that the application of the test requires normative factors to be taken into account. The Court held that, as in K, the relevant interrelated normative factors at play in F were—

“the state’s constitutional obligations to protect the public; the trust that the public is entitled to place in the police; the significance, if any, of the policeman having been off duty and on standby duty; the role of the simultaneous act of the policeman’s commission of rape and omission to protect the applicant; and the existence or otherwise of an intimate link between the policeman’s conduct and his employment.”

Mogoeng J held that all of these elements complement one another in determining the state’s vicarious liability.

[21] The Constitutional Court in this case held that the facts gave rise to a sufficiently close link between Mr van Wyk’s employment and the assault and rape of Ms F. This link was founded on the grounds

• that a police vehicle facilitated the commission of the rape;
• that Ms F placed her trust in him because he was a police official; and
• that the state has a constitutional obligation to protect the public against crime.

Consequently, the Minister was held vicariously liable for the damages suffered by Ms F as a result of the rape and assault.

Litigation history

High Court

[22] Reverting to the matter before us, in August 2013, the applicant instituted action for damages against the Minister of Safety and Security in the Eastern Cape Division of the High Court of South Africa, Grahamstown (High Court). In her particulars of claim, the applicant pleaded that the deceased had shot and wounded her. She further alleged that during the incident, the deceased was a member of the SAPS and was acting within the course and scope of his employment under the South African Police Service Act (SAPS Act).

[23] At the commencement of the trial, the Court was requested to separate liability and quantum of damages, and determine liability only. In this regard, the Minister conceded all of the elements of delictual liability in relation to the shooting of the applicant. However, he denied that he was vicariously liable for damages suffered by the applicant as a result of the deceased’s conduct. The parties agreed that the shooting was not foreseen by the applicant or by the SAPS.

[24] The High Court accepted that this was a deviation case as the wrongful act was done solely for the purposes of the employee. In order to determine whether the employer should be held vicariously liable, the Court applied the test laid down in Rabie, and expanded in K and F.

[25] The High Court held that some of the elements set out in F were present in this matter, while others were not. It accepted that the issue of trust did not arise in this case in the same manner as in K and F. The High Court held that the element of trust was not a prerequisite for vicarious liability but was one of the factors that may or may not be present. In this regard, the Judge relied on Pehlani, in holding that a far more significant factor in the circumstances of this case was the fact that the deceased used a police firearm to commit the delict.

Because the Minister had created a risk of harm by issuing the firearm used by the perpetrator, he was responsible for any harm that ensued as a result of its misuse, and the rationale for the imposition of vicarious liability would be served by recognising this risk and encouraging strict official controls over the issuance of police firearms.

The other strong indicator for the imposition of vicarious liability was the fact that the deceased was dressed in police uniform and had been dropped off for dinner by a police vehicle and would, but for the unfortunate events of that evening, have been picked up by the vehicle so that he could resume his assigned duties. The High Court thus concluded that the Minister was vicariously liable for damages suffered by the applicant as a result of the deceased’s delictual conduct.

Supreme Court of Appeal

[26] The Minister then sought to appeal the decision of the High Court in the Supreme Court of Appeal.

[27] The Supreme Court of Appeal reversed the decision of the High Court. Makgoka AJA wrote for the majority. He considered K and F and the two questions to be asked in deviation cases in order for vicarious liability to be imposed.

[28] In applying the test, the majority held that the answer to the first question – whether the wrongful act was done solely for the purpose of the employee – did not establish liability on the part of the employer because the deceased acted for his own interests. This conclusion was based on the following:

(a) The deceased was on a private visit to his lover’s home to have supper.
(b) He was not there in his capacity as a police officer and he had no official police function to perform.
(c) The visit was purely social during the time he was permitted to be away from the police station for a meal break.
(d) The break had nothing to do with his employer any more than it would have had anything to do with his employer’s business if he had been sitting having a meal in a café or purchasing a take-away at a fast food restaurant.

[29] With regard to the second question – whether a sufficiently close link nonetheless exists – the majority held that there was not a sufficiently close link between the employee’s act for his own interest and the purposes and business of the employer. Its conclusion was based on the following:

(a) When the shooting took place, the applicant and the deceased were not relating to each other as police officer and citizen but were lovers in a domestic setting.
(b) The applicant confirmed during her testimony that she and the deceased had no relationship problems and had not argued before the shooting. The shooting was not foreseen either by the applicant or SAPS. There appeared to have been no sign at all that the deceased would have done what he did.
(c) The applicant did not repose trust in the deceased due to his employment as a police reservist with the SAPS.
(d) The applicant did not fall in love with the deceased because he was a police officer.
(e) There was no situation which called upon the deceased to act as a police officer at the applicant’s home.
(f) There was no evidence that when the deceased was employed and issued with a firearm, the management of the SAPS was aware or should have been aware that this created a material risk of harm to the community.

[30] The majority disagreed with the High Court’s reasoning that the trust aspect was not an essential factor in this particular case. It held that in K and F, trust was central to the finding that there was a sufficiently close connection between the acts of the police officers and their employment. In the present case, the parties were not relating to each other as police officer and citizen but were interacting as lovers in a domestic setting. The Supreme Court of Appeal therefore held that the trust element, that the public ordinarily reposes in the police, did not arise at all. In dealing with the facts that the deceased used a service pistol, was dropped off by a police vehicle and was wearing police uniform, the majority held that all of those elements were weakened by the absence of trust between the parties. It held that since the deceased was not there in his official capacity and was there to enjoy dinner, no liability could be found on the part of the Minister.

[31] The majority also disagreed with the High Court’s reliance on Pehlani and its conclusion that the Minister was vicariously liable on the basis of the issuance of a firearm. The Supreme Court of Appeal held that such a conclusion would amount to the imposition of strict liability. This could not be done in the absence of evidence that the SAPS had failed to ensure that the deceased was properly trained and disciplined or that the SAPS should have foreseen that the deceased would pose a danger to the public. There was no evidence that the deceased was a danger by being given a firearm.

Consequently, the Supreme Court of Appeal overruled Pehlani to the extent that it imposed vicarious liability merely on the basis that SAPS had issued a firearm to a police officer who subsequently committed a delict with it.

[32] The majority held that, since the deceased was not there in his official capacity and the element of trust was absent, a sufficient link was not present and the Minister should not be held vicariously liable. The majority thus upheld the appeal and set aside the decision of the High Court.

[33] The minority judgment (written by Bosielo JA) held that the test for vicarious liability should not be approached mechanically as it involves relevant policy considerations. The test must be approached through the prism of the Constitution and its values and norms. The judgment emphasised the fact that police officers are not ordinary members of the public, but are appointed after a careful selection process followed by “intensive training in professionalism, discipline, self-control and skills, amongst others, in the use of firearms”.

The minority highlighted the fact that the role of police officers is to protect the public, and they are issued firearms for the purpose of executing this duty. The judgment asserted that by arming police officers with dangerous weapons, the Minister creates substantial risk that police officers may use them unlawfully. As a result, the Minister has the responsibility to ensure SAPS employees are properly trained and disciplined, and all members of the public are entitled to expect a professional and disciplined police service. If the police fail to execute their duties, the responsibility for them as employees should fall on the Minister.

[34] The minority judgment therefore afforded significant weight to the factor of creation of risk in the assessment of the facts in this case.

The minority held that the following factors were also relevant to the determination of the question of vicarious liability:

• the fact that the deceased was on duty,
• dressed in full SAPS uniform and armed with a police firearm;
• the fact that he had been assigned crime prevention duties and had to attend to complaints by members of the public; and
• the fact that he was driven to the applicant’s home by a colleague in a police vehicle and that same colleague would have fetched him later had he not committed suicide.

[35] The minority disagreed with the majority’s finding that the deceased’s visit to the applicant had no link to his employment. It held that going to the applicant’s home for dinner did not absolve the deceased from discharging his obligations as a police officer. Furthermore, since he was in full police uniform, to any reasonable person he epitomised a police officer who was on duty in terms of his employment with the Minister. It concluded that the mere fact that the deceased was on a break to eat supper at the applicant’s home did not sever the link to him being a police officer to such an extent that it destroyed any basis of a possible imposition of vicarious liability on the Minister. This is because the applicant, like all individuals, was entitled to protection by members of the police service. The minority would have dismissed the appeal.

In this Court

Submissions by the applicant

[36] The applicant submits that the distilled question for determination before the court a quo was whether the facts demonstrate that there is a sufficient link between the deceased’s shooting of the applicant and his employment as a police officer to impose vicarious liability on the Minister.

[37] According to the applicant, the determination of this issue requires a “delicate consideration” of the factual and normative factors present in this case.

[38] She refers to the decision of the court a quo and its consideration of the policy factors that underlie the doctrine of vicarious liability, and submits that the application of these normative factors will vary depending on the facts of a particular case. The applicant submits that a relevant question here is whether there was a creation of risk of harm on the part of the Minister by arming the deceased with the police firearm that he used to intentionally harm her. The applicant contends that the court a quo rightly held that the creation of risk was a significant normative factor in this case.

[39] In this regard, the applicant states that the court a quo correctly relied upon Feldman, where it was held that an employer has a duty to ensure that no harm ensues as a result of an employee’s negligence in the course of his employment. The applicant contends that the court a quo properly identified the normative consideration of the creation of risk to be more significant in the determination as to whether the Minister is vicariously liable in this case, than the issue of whether the applicant subjectively trusted the deceased or was in a romantic relationship with him. Here, the Minister had issued a firearm to the deceased and therefore created a risk of harm. The firearm directly caused the harm in question and the deceased had access to the firearm due to his special role as a policeman.

[40] The applicant submits that the High Court and the Supreme Court of Appeal minority were justified in attributing vicarious liability on the basis of this and the other normative factors applicable: the deceased was on official police duty and in uniform; and the employer is under a constitutional duty to protect citizens of South Africa from both domestic and public violence. The applicant contends that these factors give rise to a sufficiently close connection between the unlawful conduct and the deceased’s employment as required by K. Imposing vicarious liability is justified because the Minister should be held responsible for any harm that ensues as a result of creating a risk of harm. The applicant submits that the harm that she suffered would not have occurred if the Minister had not entrusted the deceased with the possession of a lethal weapon.

[41] The applicant argues that this result is supported by Pehlani and Von Benecke, in which the Minister of Defence was held liable for a shooting that took place during an armed robbery using a firearm assembled from stolen gun parts provided to the perpetrator by a member of the South African National Defence Force (SANDF). The applicant submits that leave to appeal should be granted and that the majority decision of the Supreme Court of Appeal should be set aside.

Submissions by the respondent

[42] According to the respondent, leave to appeal should be refused as the applicant’s prospects of success on appeal are weak. Alternatively, if leave is granted, the application should be dismissed.

[43] On the merits, the respondent submits that in both the cases of K and F, a sufficiently close link between the employees’ acts and the purposes and business of the employer was established primarily through the element of trust that the victims had in members of the SAPS.

According to the respondent, the element of trust should therefore be accorded primacy because the trust that the public is entitled to repose in the police service justifies imposing vicarious liability on the Minister. It constitutes the sufficiently close link between the deceased’s conduct and his employment. A member of the public is exposed to harm because he or she reasonably trusts a police officer. He or she may be harmed because the police officer exploits this trust.

Thus, for liability to ensue, a member of the public has to repose their trust in a police officer who commits an offence against the person who trusted them. In this regard, the respondent relied on P E. The respondent argues that the element of trust was more significant in F, where the factual situation around the connection of the police officer’s acts and his employment was even more tenuous than that in K. The respondent submits that it may be concluded that absent Ms F’s trust in the police officer involved in the case of F, a sufficiently close link would not have been established.

[44] The respondent argues that this central element of trust is not present in this case. The applicant trusted the deceased not to harm her not because he was a police officer, but because they were in a relationship. The respondent avers that this is confirmed by the applicant’s own evidence that the deceased had gone to her home to have dinner as her boyfriend and not as a police officer. Although the applicant’s trust in the deceased enabled the crime, she did not form it based on the fact that he was a police officer as required for the imposition of vicarious liability. Thus, according to the respondent, there is no sufficiently close link for the purposes of imputing vicarious liability to the Minister. The respondent contends that a finding of vicarious liability in this case would effectively amount to strict liability.

Leave to appeal

[45] The first issue in this matter is the question of whether leave to appeal should be granted. To determine whether leave to appeal should be granted, the Court must establish that the case engages this Court’s jurisdiction, and, if so, that it is in the interests of justice to grant leave to appeal.

[1] The engagement of this Court’s jurisdiction is a threshold requirement for the granting of leave to appeal. If a case does not overcome this initial obstacle, it cannot be entertained by this Court. It is only if the jurisdictional threshold has been met that this Court will proceed to assess whether it is in the interests of justice for the Court to determine the matter.

The “interests of justice” enquiry includes – but is not limited to – an assessment of whether an applicant has reasonable prospects of success, which may involve some consideration of the application’s merits. At the point of the jurisdictional enquiry, however, this Court has held in Gcaba that

“[j]urisdiction is determined on the basis of the pleadings . . . and not the substantive merits of the case”.

I will now proceed to examine whether the issues as pleaded by the applicant in this case confer jurisdiction on this Court.

Jurisdiction

[2] The Constitution provides that this Court’s jurisdiction is engaged in constitutional matters and matters that raise an arguable point of law of general public importance that ought to be decided by this Court.

[3] The first question is whether this appeal raises a constitutional issue. The applicant in her founding affidavit argues that the constitutional matter raised for consideration in this application 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 the servants of the State”.

In support of this contention, the applicant argues that the Supreme Court of Appeal 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.

In addition, the applicant argues that she has reasonable prospects of success on appeal, and that the existence of conflicting judgments in respect of the issues that this appeal raises is another compelling basis for leave to appeal to be granted.

The applicant does not argue that the test for the imposition of vicarious liability is at odds with our constitutional order, or that it requires development.

[4] The respondent, on the other hand, submits that the reasoning and conclusion reached in the majority judgment of the Supreme Court of Appeal are sound and that the applicant does not have strong prospects of success on appeal.

[5] In the context of the applicant’s submission that the constitutional issue in the present case is the application of the test developed in K and in F, it is important to recognise that this Court does not ordinarily grant leave to appeal on the basis that an applicant is dissatisfied with a preceding court’s application of an established legal test.

[6] This was affirmed in Mankayi where this Court stated that the Court has found that it is inappropriate for the concept of what constitutes a “constitutional issue” to be narrowly construed, but that it has nonetheless “refused to entertain appeals that seek to challenge only factual findings or incorrect application of the law by the lower courts”.

[7] In Mbatha, Madlanga J (in a concurring judgment) found that “what is in essence a factual issue” may not “morph into a constitutional issue through the simple facility of clothing it in constitutional garb”.

[8] This Court had to grapple with the issue of whether the application of the test for vicarious liability amounted to a constitutional issue in K. In doing so, O’Regan J acknowledged the contention raised by the respondent that, to the extent that the case concerned the mere application of the principles of vicarious liability, it did not amount to a constitutional issue. In this regard, O’Regan J quoted the decision of this Court in Phoebus Apollo:

“It is not suggested that in determining the question of vicarious liability the SCA applied any principle which is inconsistent with the Constitution. . . . The thrust of the argument presented on behalf of the appellant was essentially that though the SCA has set the correct test, it had applied that test incorrectly ─ which is of course not ordinarily a constitutional issue. This Court’s jurisdiction is confined to constitutional matters and issues connected with decisions on constitutional matters. It is not for it to agree or disagree with the manner in which the SCA applied a constitutionally acceptable common-law test to the facts of the present case.”

[9] O’Regan J found that K was distinguishable from Phoebus Apollo because, unlike in that case, the argument put forward by the applicant in K was not purely that the Supreme Court of Appeal incorrectly applied the established test for the imposition of vicarious liability. Counsel for the applicant went further and contended that, if the Supreme Court of Appeal had applied the common law rule correctly in holding that the state was not vicariously liable for the applicant’s damages, then the rule should be developed to take into account the applicant’s constitutional rights and to provide a remedy to correspond to the state’s alleged constitutional duties.

[10] A similar argument was made by the applicant in F. There, the Court was also asked to develop the common law of vicarious liability in the event that it found that the Supreme Court of Appeal had correctly applied the common law test to arrive at its conclusion (which was largely based on the fact that the police official was on standby duty rather than active duty as was the case in K).

For this reason, the Court’s jurisdiction was not only grounded in the implication of certain constitutional provisions, but also in the enjoinment by the Constitution for courts to “develop the common law, including the delictual principle of vicarious liability, in accordance with the spirit, purport and objects of the Bill of Rights”. These factors cumulatively led the Court to conclude that the matter raised constitutional issues of importance.

[11] In Luiters, the applicant (the Minister) applied for leave to appeal against the order of the Supreme Court of Appeal confirming the High Court’s order that the Minister was vicariously liable for a delict committed by an off-duty police officer. In an appeal to this Court, the Minister sought to develop the test set out in K to confine its application to on-duty police officers. This Court held that the matter engaged this Court’s jurisdiction because the Minister had raised a constitutional issue by seeking the development of the common law of vicarious liability. Despite finding that a constitutional matter was raised, this Court dismissed the Minister’s application for leave to appeal on the basis that it lacked reasonable prospects of success.

[12] That is not the case here. In the present matter, the applicant has brought a narrow case before this Court. The applicant’s pleaded case is purely that the Supreme Court of Appeal incorrectly assessed the facts in its application of the F and K test. It is clear from the submissions before us that the applicant does not contend that the Supreme Court of Appeal and the High Court held different views about the content of the law, only that they applied accepted principles in different ways.

[13] The difference between the reasoning in the Supreme Court of Appeal majority and the minority (and the High Court) judgments ultimately comes down to the weight that was attached to the different normative considerations underpinning vicarious liability based on their assessment of the facts.

The Supreme Court of Appeal minority and the High Court judgments attached substantial weight to the fact that the delict was committed using an official firearm, and the policy consideration that – because the Minister creates risk by issuing firearms to police officers and bears the responsibility of training police officers – he should be encouraged to take active steps to prevent employees from causing harm to the broader public.

The Supreme Court of Appeal majority judgment found on the assessment of the facts that significant weight should be attached to the element of trust, since the deceased did not gain access to the applicant due to her trust in him as a police officer, but instead due to the fact that they were in a romantic relationship.

[14] Unlike in F and K, the applicant has not averred that the common law test requires further development or that the bounds of the F and K test need to be further explored due to contextual factors. As a result, this case purely concerns the application of an accepted legal test, which this Court has repeatedly held is not a constitutional matter. It follows that no constitutional issue has been raised in this matter to clothe this Court with jurisdiction.

[15] Furthermore, the applicant has not pleaded that this Court has jurisdiction in this matter because it concerns an issue of general public importance. The applicant has simply argued that the approach taken by the High Court and the Supreme Court of Appeal minority judgment is correct. The case is narrowly framed and brought in the applicant’s own interest.

No arguments have been put forward by the applicant to the effect that this matter concerns an issue of national legal import. Had the applicant done so and had the respondent had an opportunity to answer to an argument of this nature, it is possible that the Court could have entertained the matter, however the Court is bound by the pleadings in this case. In the result, the threshold requirement of jurisdiction has not been met.

[16] Since there is no constitutional issue, it is not necessary for this Court to assess the merits of the case. In the result, leave to appeal must be refused.

Conclusion

[17] The two-stage enquiry for the imposition of vicarious liability in deviation cases first set out in Rabie and as developed in K and F is now an established legal test. Vicarious liability matters involve a careful consideration and weighing of the various factors set out in K and F to establish whether a sufficiently close link exists between an employee’s conduct and the business of an employer. K and F expressly refer to factors as opposed to requirements and the weight to be accorded to each factor must inevitably be determined on a case by case basis. This flexibility inherent in the test will naturally lead to different factors being accorded different weights by different courts, but it is this very flexibility that has imbued the common law of delict with the values of the Constitution. As the applicant has not put forward an argument that the established test should be developed in order to afford greater weight to any one factor, this matter purely concerns the application of an established test. The threshold requirement of jurisdiction has not been met.

[18] Consequently, the application for leave to appeal is refused. This outcome should not be perceived to detract from this Court’s grave concern about the abuse of official firearms by police officers, which has proven to be a pervasive issue in our country.

Costs

[19] The respondent makes no argument as to costs. In the result no order as to costs will be made.

Order

[20] The following order is made:

1. Leave to appeal is refused.
2. There is no order as to costs.