When a policeman commits a crime — Concourt poser over liability of minister
Ernest Mabuza | 2017-05-28 15:51:16.0
Judge Lebotsang Bosielo.
Image by: David Harrison
A police reservist in uniform shot his girlfriend at dinner. Should the minister of police be held liable?
That question must now be answered by the Constitutional Court‚ which has dealt with police criminality at least twice before.
In 2005 it held that the police minister was “vicariously” liable for the actions of three on-duty policemen who raped a stranded 20-year-old woman. And in 2011 the minister was held vicariously liable for damages after the brutal rape of a 13-year-old by a policeman on standby duty.
Normally‚ a person is not liable for wrongful deeds committed by another person. But in terms of vicarious liability‚ an employer can be held liable for the consequences of an employee’s wrongful and unlawful conduct.
In the latest case‚ Johannes Mbongo shot and wounded his girlfriend‚ Elsa Booysen‚ in 2013. He then killed himself.
Mbongo‚ from Pearston in the Eastern Cape‚ worked night shift. On the day of the incident‚ he was dropped off by a police vehicle while on duty to have dinner with Booysen.
He ate dinner and without warning drew his firearm‚ shooting Booysen in the face‚ then himself. She survived. The police minister was held vicariously liable by the High Court in Grahamstown in 2015.
Later‚ the Supreme Court of Appeal ruled that the minister was not liable for Mongo’s conduct.
“He was on a private visit to his lover’s home to have supper. He was not there in his capacity as a police officer. Simply put‚ he had no official police function to perform‚” ruled Acting Judge of Appeal Tati Makgoka.
In a dissenting judgment‚ Judge Lebotsang Bosielo said this was a classic case of a police officer‚ in uniform and on duty‚ who unlawfully used a state-issued firearm‚ not to protect the public‚ but to shoot Booysen.
Booysen wants a final ruling — which could pave the way for a damages claim. The case will be heard in August.