THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
CASE NO: 1084/2013

In the matter between:
MINISTER OF SAFETY AND SECURITY

APPELLANT

and

MAPULA PAULINE MORUDU

FIRST RESPONDENT

Neutral Citation:
Minister of Safety and Security v Morudu (1084/2013) [2015]

ZASCA 91 (29 May 2015).
Coram:

Navsa ADP, Brand, Saldulker & Mbha JJA and Dambuza AJA
Heard:

12 May 2015
Delivered:

29 May 2015
Summary:
Vicarious liability – test to be applied in deviation cases – spirit, purport
and objects of the Bill of Rights to be considered – acts of policeman not sufficiently
close to give rise to vicarious liability.

______________________________________________________________________
ORDER
______________________________________________________________________

On appeal from: The North Gauteng High Court, Pretoria (Molefe AJ sitting as court of
first instance).

The following order is made:

1. The appeal is upheld and no order is made as to costs.
2. The order of the court below is set aside and substituted as follows:
„The plaintiffs‟ claims are dismissed and no order is made as to costs.‟

______________________________________________________________________

JUDGMENT
______________________________________________________________________
Navsa ADP (Brand, Saldulker & Mbha JJA and Dambuza AJA concurring):

[1] The events of the morning of the day before Christmas 2001 will, no doubt,
continue to haunt the respondents, Mrs Mapula Pauline Morudu and her four children
for the rest of their lives. On that fateful day Inspector Frans Duba (Duba), then
employed by the appellant, the Minister of Safety and Security, drove to their home
situated at 22 Zone 5, Seshego Township in the Limpopo Province. Upon arrival he
called out the name of Mr Mothibi Elias Morudu, the first respondent‟s husband and the
father of the other respondents. Duba asked about the whereabouts of Mrs Duba, his
wife. Shortly thereafter he pursued Mr Morudu, through the house and ultimately shot
and killed him.

[2] At the time of the events referred to in the preceding paragraph, Duba was
attached to what is now known as the Polokwane Criminal Record and Crime Scene

Management Unit of the South African Police. Simply put, he was a fingerprint
investigator and a member of a police unit that attended crime scenes for investigative
purposes when called upon to do so. Duba drove to the house where he shot Mr
Morudu (the deceased) in an unmarked police vehicle that had been assigned to his
unit. At that time, he and another colleague were on call to attend crime scenes, should
the need arise. The firearm which he used in perpetrating the awful deed was his own
and not of official issue. The question on appeal, as in the court below, is whether,
following on the death of the deceased, the appellant should be held vicariously liable
for the respondents‟ alleged loss of support sustained as a result of Duba‟s actions. The
details that follow have been distilled from the evidence adduced in the Gauteng
Division, Pretoria,1 following on an action instituted by the respondents in which they
claimed damages flowing from the unlawful killing of the deceased.

[3] During the morning of Monday, 24 December 2001, shortly after she awoke, the
first respondent, in preparing to start her daily household chores, took the youngest of
her three children to the room where her other children slept. She returned to her
bedroom when suddenly, Duba appeared from behind the curtains, calling out her
husband‟s name and asking about the whereabouts of his wife, Mrs Duba. The first
respondent was terrified. Duba, who was armed, fired shots in her bedroom. The first
respondent managed to escape from the room and whilst fleeing grabbed one of her
children who was standing in a passage of the house. The first respondent exited
through the kitchen door and sought refuge in a neighbouring house. From the
neighbour‟s premises she saw a white unmarked motor vehicle, which Duba had used
to travel to the scene. It was parked around a corner close to her house. When she
returned to the house she found the deceased lying close to the kitchen door. He had
been shot and killed by Duba.

[4] The first respondent had encountered Duba for the first time on a prior occasion
when he had visited her home on a Sunday afternoon and had sought the deceased.

1 Formerly known as the North Gauteng High Court, Pretoria (GNP) between 1 March 2009 and 23
August 2013 in terms of the Renaming of High Courts 2014 (3) SA 319 and has since been renamed the
Gauteng Division of the High Court Pretoria.

When she informed Duba that her husband had gone to church he, in turn, told her that
the deceased had been intimate with his (Duba‟s) wife. This came as a surprise to the
first respondent. When the deceased returned and was confronted by the first
respondent about the accusation made by Duba, he had denied it.

[5] At the time of the incident, the first respondent‟s youngest child was 18-months-
old. Another was 10-years-old. A third was 12-years-old and the eldest was 22-years-
old. They are the second to fifth respondents respectively.

[6] The first respondent had discovered only after Duba‟s arrest that he was a
policeman. On the two occasions that Duba had visited the deceased‟s house, he was
dressed in civilian clothing. The first respondent was uncertain about whether the
deceased had indeed, been intimately involved with Duba‟s wife. The first respondent
did, however, recall finding a letter, which she identified in court, ostensibly written by
Duba‟s wife and addressed to the deceased. The letter was suggestive of a romantic
relationship between the deceased and Duba‟s wife.

[7] Ms Tebogo Portia Khumalo (Tebogo), the fifth respondent, the eldest daughter of
the deceased and the first respondent, testified about the events of the day in question.
At that time she was a student enrolled at the Pretoria Technikon. She recalled her
mother bringing her youngest sibling to her bedroom and then departing. Shortly
thereafter she heard shots being fired. She went towards her mother‟s bedroom and
saw sparks flying and heard her mother screaming. Tebogo was petrified. Her mother
ran into the passage, picked up her brother and ran out of the house. Tebogo then
made her way towards her own bedroom and saw the deceased running into a
passage. Duba pursued the deceased and when he encountered Tebogo in the
passage, asked her where her father was. She answered that she did not know and re-
entered her bedroom where she hid between the window and the bed. The deceased
went into the bathroom and locked himself in. She later heard a window being shattered
and shots being fired. The deceased emerged from the bathroom and entered her
bedroom. Duba tried to kick her bedroom door down. The deceased undertook to come

out and pleaded with Duba not to shoot, informing him that there was a child in the
room. The deceased proceeded to open the door. More shots were fired and Tebogo
heard the deceased physically struggling with Duba. When she emerged from her
bedroom, she saw the deceased lying close to the kitchen door.

[8] Captain Viljoen (Viljoen), a member of the South African Police Service,
presently employed at the Polokwane Criminal Record and Crime Scene Management
Unit (the Unit), was stationed there during December 2001. At that time, the
commanding officer was Lieutenant-Colonel Makafola (Makafola). Viljoen was the most
senior officer after Makafola. The Unit was located on the corner of Schoeman and
Bodenstein Street in Polokwane. Viljoen had worked with Duba. He testified that
members of the Unit did not wear police uniforms. Members travelled to crime scenes in
unmarked police vehicles assigned to them. The Toyota Hilux motor vehicle which Duba
had used on the day in question was such a vehicle. It had a Northern Province
registration reflected on the vehicle‟s number plate. Civilians would have no indication
that it was a police vehicle. Viljoen had been the duty officer during the week when the
deceased was shot and killed. With reference to official documents presented during the
trial he confirmed that at the material time two members of the Unit were on standby to
attend crime scenes within Polokwane and the surrounding areas of Mangkweng,
Mogoadi and Malebogo. Duba was identified as one of the members on standby. The
following part of Viljoen‟s evidence bears repeating:
„Being on standby means that you are responsible for standby activities during and after hours.
The standby activities means that a person is allocated a state phone and a state vehicle where
the vehicle is garaged at a specific place predetermined. Then whenever the person is activated
by means of the cell phone to do standby activities he will then place himself on duty in his
pocket book, he will move to the place where the activity is, finalise the activity, come back to
the place which was determined for the garaging of the vehicle, garage the vehicle and then
place [himself] off duty again in his pocket book.‟

[9] It is common cause that Duba had not made an entry in his pocket book before
he drove out to the deceased‟s house. Furthermore, he had not, during that time, been

dispatched to do duty at any crime scene. The duty areas that Duba and his colleague
were assigned to did not include Seshego, where the deceased resided.

[10] The Toyota vehicle which Duba had used had been assigned to the Unit and was
required to be garaged at the South African Police barracks in Seshego. This, according
to Viljoen, meant that the vehicle had to remain at the barracks until Duba and the other
member of the unit were „activated‟ to attend a crime scene. After completing their tasks
they were obliged to return the vehicle to the barracks. At the material time, Duba and
his standby colleague were residing at the barracks. This was a requirement when a
member was on standby duty.

[11] Duba and his colleague were required to attend a daily inspection at the Unit‟s
offices in Seshego between 07h00 and 07h30. They would thereafter be required to
attend at police stations where they might collect cases for investigation. The distance
between the barracks and the Unit‟s Seshego office is 22 kilometres.

[12] During the morning of 24 December 2001, just before 07h00, Viljoen received a
phone call from Duba, who informed him that he had shot someone and that he was
presently at the Seshego police station where the barracks are also situated. He
required Viljoen to come and collect the police cellular telephone which had been
assigned to him. Viljoen travelled to the police station and was told that Duba did not
want to see him. At that time the Toyota motor vehicle was parked at the police station.
According to Viljoen the distance from the Seshego police station to the deceased‟s
house is approximately six kilometres. Upon checking the vehicle‟s official record,
Viljoen found that Duba had used it to travel a distance of 431 kilometres, the purpose
of which was not noted. Viljoen recorded that usage as being unauthorised. Under
cross-examination he conceded that perhaps not all of it was unauthorised. He had
arrived at the prior conclusion on the basis that the travelling had not been accounted
for. He could not investigate that aspect any further because Duba was in custody.

[13] Viljoen testified that Duba had never been issued with an official police firearm.
Viljoen explained that being a fingerprint investigator, like Duba, was the first step
towards becoming a fingerprint expert. As far as Viljoen was aware, no one had
„activated‟ Duba to attend a crime scene during the morning of the events in question.

[14] The last witness to testify was Warrant Officer Selepe (Selepe). He was the
colleague on standby duty with Duba during the week in which the deceased was killed.
The duty week stretched from Friday to Friday. Selepe was adamant that the Toyota
vehicle assigned to them could only be used for official duties and not for private
errands. Like Duba, Selepe slept at the barracks during the duty week. He confirmed
that he and Duba had been issued with an official cellular telephone which was used to
contact them in the event that they were to be placed at a crime scene.

[15] Selepe described the events of the morning during which the deceased was
killed. He was in his room preparing to go to work when Duba came to make
arrangements for them to travel to the office together. They agreed at 06h00 that they
would leave at 07h00. Approximately 45 minutes later Duba came to him holding a
bleeding arm. He informed Selepe that he had shot someone and handed over the car
keys and the official cellular telephone. Duba‟s private firearm was on his hip. He did not
see Duba thereafter. Under cross-examination Selepe was adamant that the work of the
Unit was confined to dealing with fingerprints and taking photographs of crime scenes.
He insisted that the uniform branch were the principal crime fighters tasked with
arresting criminals. Selepe resisted attempts by counsel on behalf of the appellant to
have him concede that his primary duty as a member of the South African Police
Service was to actively protect citizens. He repeatedly stated that the Unit‟s function
was an investigative one. According to Selepe the unauthorised kilometres recorded by
Viljoen were due to Duba and not to him. He testified that he had accounted for all of his
official travels and that he had handed the keys to Duba, with an odometer reading 432
kilometres less than that ultimately recorded by Viljoen. According to Viljoen, given its
closeness to the barracks, Duba could quite easily have travelled to the deceased‟s
house using public transport. For completeness, it is necessary to record that Viljoen‟s

testimony was ultimately unchallenged that an hourly allowance of R16.80 payable to
officials of the South African Police Service who are on standby duty per 24 hour period
is not paid to members of the Unit because of a statutory exemption.
[16] The court below (Molefe AJ) had regard to two decisions of the Constitutional
Court, namely, K v Minister of Safety and Security [2005] ZACC 8; 2005 (6) SA 419
(CC) and F v Minister of Safety and Security [2011] ZACC 37; 2012 (1) SA 536 (CC),
and stated that in adjudicating whether there should be vicarious liability, the focus is
now on whether the connection between the conduct of the policeman and his
employment was sufficiently close to render the Minister liable. Molefe AJ said the
following (in para 8):
„The establishment of this connection is assessed by explicit recognition of the normative factors
that point to vicarious liability.‟ (Footnote omitted.)
Following the Constitutional Court‟s lead, she held that the fact that a member of the
South African Police was on standby, rather than active duty, and the question of
payment for that duty was not determinative.

[17] The following paragraph of the judgment of the court below sets out the ratio for
its conclusion that the appellant was vicariously liable (in para 20):
„Although the Second Defendant‟s murdering of the deceased had nothing to do with his official
duties, I am of the view that there is a sufficiently close link between his act for his own personal
gratification and the business of the First Defendant. In casu, the Second Defendant was on
standby duty as instructed by his employer, the First Defendant. He utilized the employer‟s
vehicle to attend to his personal matters by going to murder the deceased, which action was an
intentional deviation from his duties.‟

[18] The question in this appeal is whether that reasoning and the conclusion are
correct. The judgment of the Constitutional Court in F is instructive. In para 40,
Mogoeng J, as he then was, restated the general rule in relation to vicarious liability,
namely, that an employer is vicariously liable for the wrongful acts or omissions of an
employee committed within the course and scope of employment, or whilst the
employee was engaged in any activity incidental to it. He went on to record that two
tests apply in determining vicarious liability: The first applies where an employee

commits a delict when going about the employer‟s business, this is referred to as the
standard test. The second is where the wrongdoing occurs outside the course and
scope of employment, those are referred to as „deviation cases‟. This matter, as in F, is
a deviation case.

[19] With reference to the decision of this Court in Feldman (Pty) Ltd v Mall 1945 AD
733, the Constitutional Court in F examined the rationale behind holding an employer
liable where an employee had deviated from his or her duties. In para 45 of F the
following appears:
„Central to this passage is the proposition that employees are extensions of their employers.
This is indeed so because, figuratively, employees are the hands through which employers do
their work. Employers could therefore be held to have created a risk of harm to others should
their employees prove to be inefficient or untrustworthy. That potential risk imposes an
obligation on employers to ensure that the employees they hold out as the hands through which
they would serve or do business with others, would not do the opposite of what they are
instructed and obliged to do. Should they, however, act inconsistently with the employer‟s core
business, some link between the employers‟ business and the delictual conduct must be
established before the employers may be held vicariously liable.‟

[20] In Minister of Police v Rabie 1986 (1) 117 (A) this Court was dealing with a claim
for damages arising from the wrongful arrest, detention and assault of an individual. The
acts complained of had been perpetrated by an off-duty mechanic employed by the
South African Police Service. At the time of the arrest, he had not been wearing a police
uniform. He had, however, identified himself as a policeman, took the person he had
arrested to the police station, filled-out a police docket and wrongfully charged his victim
with attempted housebreaking and then detained him. At 134C-E the following appears:
„It seems clear that an act done by a servant solely for his own interests and purposes, although
occasioned by his employment, may fall outside the course or scope of his employment, and
that in deciding whether an act by the servant does so fall, some reference is to be made to the
servant‟s intention (cf Estate Van der Byl v Swanepoel 1927 AD 141 at 150). The test is in this
regard subjective. On the other hand, if there is nevertheless a sufficiently close link between
the servant‟s acts for his own interests and purposes and the business of his master, the master

may yet be liable. This is an objective test. And it may be useful to add that according to the
Salmond test . . . :
“a master . . . is liable even for acts which he has not authorized provided that they are so
connected with acts which he has authorized that they may rightly be regarded as modes –
although improper modes – of doing them . . .”‟

[21] In K, decided before F, the Constitutional Court was intent on explaining that the
application of this test is not merely fact based. In our constitutional order, the test for
vicarious liability cannot be shorn of normative content and social policy. In K, the
Constitutional Court appreciated that the application of the test on the aforesaid basis
will be difficult and will involve courts drawing difficult lines. Utilising the test in Rabie as
a basis, the Constitutional Court formulated the test for determining vicarious liability in
deviation cases as follows (Para 32):
„The approach makes it clear that there are two questions to be asked. The first is whether the
wrongful acts were done solely for the purposes of the employee. This question requires a
subjective consideration of the employee‟s state of mind and is a purely factual question. Even if
it is answered in the affirmative, however, the employer may nevertheless be liable vicariously if
the second question, an objective one, is answered affirmatively. That question is whether, even
though the acts have been done solely for the purpose of the employee, there is nevertheless a
sufficiently close link between the employee‟s acts for his own interests and the purposes and
the business of the employer. This question does not raise purely factual questions, but mixed
questions of fact and law. The questions of law it raises relate to what is “sufficiently close” to
give rise to vicarious liability. It is in answering this question that a court should consider the
need to give effect to the spirit, purport and objects of the Bill of Rights.‟ (Footnote omitted.)

[22] At this stage, it is necessary to have regard to the facts in K and F and to reflect
on how, applying the test referred to above, the Constitutional Court arrived at a
conclusion in terms of which the State was there held vicariously liable.

[23] In K, three policemen who had offered Ms K a lift home raped her in a police
vehicle and then threw her out. They were on duty at the time. The then prevailing
police standing orders prohibited the transport of unauthorised passengers in police

vehicles. The Court considered it to be a matter of profound importance that Ms K‟s
right to security of the person, dignity, privacy and substantive equality were implicated.
As important, was the consideration that it was part of the work of the police to ensure
the safety and security of all South Africans. The Constitutional Court was firm in its
view that the vulnerability of women and children to sexual violence and South Africa‟s
international obligations in that regard were factors that could not be ignored.

[24] In para 44 of K the following appears:
„The objective element of the test which relates to the connection between the deviant conduct
and the employment, approached with the spirit, purport and objects of the Constitution in mind,
is sufficiently flexible to incorporate not only constitutional norms, but other norms as well. It
requires a court, when applying, it to articulate its reasoning for its conclusions as to whether
there is a sufficient connection between the wrongful conduct and the employment or not. Thus
developed, by the explicit recognition of the normative content of the objective stage of the test,
its application should not offend the Bill of Rights or be at odds with our constitutional order.‟

[25] Importantly, the Constitutional Court went on to state (in para 45):
„The common-law test for vicarious liability in deviation cases as developed in Rabie’s case and
further developed earlier in this judgment needs to be applied to new sets of facts in each case
in the light of the spirit, purport and objects of our Constitution. As courts determine whether
employers are liable in each set of factual circumstances, the rule will be developed. The test is
one which contains both a factual assessment (the question of the subjective intention of the
perpetrators of the delict) as well as a consideration which raises a question of mixed fact and
law, the objective question of whether the delict committed is “sufficiently connected to the
business of the employer” to render the employer liable.‟

[26] In K, the Constitutional Court took into account that the rape perpetrated by the
policemen was clearly a deviation from their duties but considered it significant that
when they committed the rape, they were simultaneously omitting to perform their duties
as policemen. That consideration was relevant in determining vicarious liability and will
be particularly relevant in answering the second question posed in Rabie, namely,

whether there was a sufficiently close connection between the delict and the purposes
and business of the employer.

[27] The Constitutional Court thought that in addition to the statutory and
constitutional duty the police bore to prevent crime and protect members of the public,
their victim in K had placed her trust in them when they had offered to assist her in
getting her home safely. Paragraphs 52 and 53 of that judgment bear repeating:
„Our Constitution mandates members of the police to protect members of the community and to
prevent crime. It is an important mandate which should quite legitimately and reasonably result
in the trust of the police by members of the community. Where such trust is established, the
achievement of the tasks of the police will be facilitated. In determining whether the Minister is
liable in these circumstances, courts must take account of the importance of the constitutional
role entrusted to the police and the importance of nurturing the confidence and trust of the
community in the police in order to ensure that their role is successfully performed. In this case,
and viewed objectively, it was reasonable for the applicant to place her trust in the policemen
who were in uniform and offered to assist her.
Thirdly, the conduct of the policemen which caused harm constituted a simultaneous
commission and omission. The commission lay in their brutal rape of the applicant. Their
simultaneous omission lay in their failing while on duty to protect her from harm, something
which they bore a general duty to do, and a special duty on the facts of this case. In my view,
these three inter-related factors make it plain that viewed against the background of our
Constitution, and, in particular, the constitutional rights of the applicant and the constitutional
obligations of the respondent, the connection between the conduct of the policemen and their
employment was sufficiently close to render the respondent liable.‟

[28] In F, the relevant facts were as follows. At the material time Ms F was 13-years-
old and had been to a nightclub in George. During the early morning hours she was
offered a lift home by a member of the South African Police Service, who was on
standby duty and entitled to the prescribed hourly tariff for being on standby duty. It
meant that he could, at any time, be called upon to attend to any crime-related incident.
He had been assigned an unmarked police vehicle to enable him to discharge police
functions when required to do so. The police vehicle had been equipped with a police
radio which Ms F noticed. After the policemen had dropped off two other passengers,

Ms F moved to the front passenger seat and noticed a pile of police dockets bearing his
name and rank. When she asked about the dockets, he told her that he was a private
detective which she understood to mean that he was a policeman.

[29] Instead of driving Ms F home the policeman drove to a dark spot where he
stopped the vehicle. Realising that she was in danger she alighted and fled and hid
herself from him. That was not the end of her ordeal. The policeman waited for her to
emerge and when he saw her hitchhiking stopped alongside her and once again offered
to transport her to her home. Even though she was apprehensive, she relented and
accepted the offer because she was desperate. A short while thereafter he turned off
the road and despite her efforts to flee, overpowered and raped her. He subsequently
took her home and threatened to kill her if she reported the incident.

[30] The Constitutional Court considered the following parts of Ms F‟s testimony
important (in para 13):
„[S]he said that the fact that she believed Mr Van Wyk to be a policeman played a role in
allaying her fears, because she “trusted” him (hom vertrou het) as, at that stage, she thought he
was a detective. She chose to repose her trust in a person of whom she was suspicious
because she understood him to be a policeman.‟

[31]  The importance of members of the public considering it safe to repose their trust
in members of the South African police was a particularly significant factor. In F, the
Constitutional Court said the following (in para 66):
„Whenever a vulnerable woman or girl-child places her trust in a policeman on standby
duty, and that policeman abuses that trust by raping her, he would be personally liable
for damages arising from the rape. Additionally, if his employment as a policeman
secured the trust the vulnerable person placed in him, and if his employment facilitated
the abuse of that trust, the State might be held vicariously liable for the delict. The
victim‟s understanding of the situation would presumably be that she is being protected
or assisted by a law enforcement agent, empowered and obliged by the law to do so.
Whether he is on or off duty would, in all likelihood, be immaterial to her. From where

she stands, he is a policeman, employed to protect her, and should therefore be trusted
to uphold, and not to contravene, the law.‟ (Footnote omitted.)
Right at the outset in F, the Constitutional Court pointed out that in adjudicating whether
the Minister should be held vicariously liable, two related factors were critical: First is the
State‟s constitutional obligation to respect, protect and promote the citizens‟ right to
dignity and to freedom and security of the person, to which is related the establishment
of a police service for the execution of the constitutional obligation to protect and secure
the inhabitants of our country. Second is the trust the public was entitled to repose in
the police.

[32] In F, as was found by the Constitutional Court, Ms F with an apparent
appreciation of the police service‟s obligation to protect her, looked for protection to the
policeman who had offered her a lift. She did so as a result of his employment as a
policeman, which placed him in a position of trust. It is this trust that is necessary for the
fulfilment of the police service‟s mandate. It was this trust that he violated. The following
three paragraphs in F are important (paras 79-81):
„There are factual differences between this case and K. There the policemen were on duty and
in uniform, driving a marked police vehicle. Ms K placed her trust in them for those clear
reasons, which created the link between the policemen‟s employment and their subsequent
misdeed. The factors here are admittedly more tenuous.
It is so that Mr Van Wyk was not in uniform, that his police car was unmarked and he was not on
duty but on standby. But his use of a police car facilitated the rape. That he was on standby is
not an irrelevant consideration. His duty to protect the public while on standby was incipient. But
it must be seen as cumulative to the rest of the factors that point to the necessary connection.
He could be summoned at any time to exercise his powers as a police official to protect a
member of the public. What is more, in that time and space he had the power to place himself
on duty. I am therefore satisfied that a sufficiently close link existed to impose vicarious liability
on Mr Van Wyk‟s employer.
In conclusion: The police vehicle, which was issued to him precisely because he was on
standby, enabled Mr Van Wyk to commit the rape. It enhanced his mobility and enabled him to
give a lift to Ms F. Further, when Ms F re-entered the vehicle, she understood Mr Van Wyk to be
a policeman. She made this deduction from the dockets and the police radio in the vehicle. In
other words, he was identifiable as a policeman. And, in fact, he was a policeman. Pivotal is the

normative component of the connection test. Beyond her subjective trust in Mr Van Wyk is the
fact that any member of the public, and in particular one who requires assistance from the
police, is entitled to turn to and to repose trust in a police official.‟

[33] Returning to the present case, it is necessary, at inception, to have regard to the
subjective element. In the present case, Duba was convinced that he was a cuckold. He
travelled to the home of the respondents to kill the person he considered to be his wife‟s
lover. That was the motivation for the tragic act that followed. It was a radical deviation
from the tasks incidental to his employment.

[34] I now turn to the objective element, namely, whether there is a sufficiently close
link between Duba‟s acts for his own interests and purposes and his duties as a
policeman. None of the respondents identified Duba as a policeman. None reposed
trust in him. The only police accoutrements were the radio and the vehicle. The radio
was not visible or seen and the vehicle was unmarked. It is true that he used the police
vehicle to travel to their home but he could just as easily have used public transport.
The area to which he travelled was not an area to which he had been assigned.

[35] I am not unmindful that Duba was a member of the South African Police Service
and that the police are required to serve and protect. However, it is not entirely without
significance that Duba was a member of a unit which interfaced with the public on a
limited basis and mainly after a crime had already been perpetrated. The Unit was not a
division of the police to which the public would intuitively turn for protection. I hasten to
add that this does not mean that, in appropriate circumstances, members of the public
would not be entitled to repose trust in it and to look to it for protection, the breach of
which might lead to vicarious liability being imposed on the appellant.

[36] This is a difficult case because of the terrible consequences for the respondents.
The trauma they suffered in witnessing a husband and father being gunned-down in
front of them is difficult to fully appreciate. Drawing a line that does not hold the Minister
liable for the loss of their breadwinner is in itself difficult. In K, the Constitutional Court in

exhorting courts to keep in mind the values of the Constitution when adjudicating cases
such as the present stated that this does not mean that an employer will inevitably be
saddled with damages simply because the consequences are horrendous.2

[37] Considering the interplay between the factors set out by the Constitutional Court,
I am unable to conclude that there is a sufficiently close link between Duba‟s actions for
his own interests and his duties as a policeman.

[38] Counsel on behalf of the police accepted that, given the circumstances, it would
not be appropriate to insist on a costs order against the respondents. It is necessary to
record that before us, there was no appearance on behalf of the respondents,
ostensibly because of a lack of funds. For the reasons aforesaid the following order is
made:
1. The appeal is upheld and no order is made as to costs.
2. The order of the court below is set aside and substituted as follows:
„The plaintiffs‟ claims are dismissed and no order is made as to costs.‟

________________________
M S NAVSA
ACTING DEPUTY PRESIDENT

2 In para 23.

APPEARANCES:

FOR APPELLANT:

Adv. S Joubert

Instructed by:

The State Attorney, Pretoria

The State Attorney, Bloemfontein

FOR RESPONDENTS:

Not presented

Abide the decision of the Court

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

29 May 2015

STATUS

Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

Minister of Safety and Security v Morudu (1084/2013) [2015] ZASCA 91 (29 May 2015)

The Supreme Court of Appeal (SCA) today handed down judgment in a matter relating to the extent
to which the Minister of Safety and Security can be held vicariously liable for acts of a policeman
which were found not to be sufficiently close to his duties as a policeman in order to give rise to
vicarious liability.

Litigation in the case arose from events of Christmas-eve in 2001. On that day, Inspector Duba, an
employee of the Minister of Safety and Security who was on stand-by duty on at the time, drove to the
home of the respondents with an unmarked police vehicle, where upon his arrival, he called out the
name of Mr Morudu (the first respondent’s husband and the father of the other respondents),
whereafter he pursued Mr Morudu through the house and ultimately shot and killed him using his
personal firearm, for the alleged extra-marital affair with Duba’s wife. At that time Duba had been
employed as a fingerprint investigator at Polokwane Criminal Record and Crime Scene Management
Unit of the South African Police Service.

Mrs Morudu (the widow of Mr Morudu) instituted action in the North Gauteng High Court, Pretoria, for
damages for the unlawful killing of the deceased. The question on appeal to the SCA, as in the court
below, was whether, following on the death of Mr Morudu, the Minister should be held vicariously
liable for the respondents’ alleged loss of support sustained as a result of Duba’s actions.

The SCA found that it was necessary to have regard to the subjective element in the case ie whether
there is a sufficiently close link between Duba’s acts for his own interests and purposes and his duties
as a policeman, that Duba was convinced that he was a cuckold and that he travelled to the home of
the Morudu to kill the person he considered to be his wife’s lover, which was the motivation for the
tragic act that followed. The Court found that this was a radical deviation from the tasks incidental to
Duba’s employment. In relation to the objective element, the SCA found that: (a) none of the Morudus
identified Duba as a policeman and none of them reposed trust in him; (a) the only police
accoutrements were the radio and the vehicle, and that the radio was not visible or seen while the
vehicle was unmarked; (c) while it was true that Duba had used a police vehicle to travel to Morudu’s
home, he could just as easily have used public transport; and (d) the area to which Duba travelled
was not an area to which he had been assigned. The SCA further found that it was significant that
Duba was a member of a unit of the police service which interfaced with the public on a limited basis

after a crime had been perpetrated and that the unit was not a division of the police in which the
public would intuitively turn for protection.

The court a quo had found that although Duba’s act had nothing to do with his official duties, there
was accordingly a sufficiently close link between Duba’s acts for personal reasons, and the business
of the Minister of Safety and Security: Duba had utilized an official albeit unmarked vehicle to drive to
Morudu’s house.

The SCA stated this was a difficult case because of the terrible consequences for the Morudus. The
trauma they suffered in witnessing a husband and father being gunned-down in front of them was
difficult to fully appreciate. The Court said that drawing a line that does not hold the Minister liable for
the loss of their breadwinner is in itself difficult. It held that keeping mind the values of the Constitution
when adjudicating cases such as this, did not mean that an employer will inevitably be saddled with
damages simply because the consequences are horrendous.

The SCA accordingly upheld the appeal with no order as to costs and the judgment of the Gauteng
Division of the High Court was set aside and replaced with an order dismissing Mrs Morudu’s actions
with not order as to costs.

--- ends ---