THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not Reportable
Case No: 273/2018

In the matter between:

THE MINISTER OF SAFETY AND SECURITY
APPELLANT

and

KHOLEKA NANCY MSI
RESPONDENT

Neutral citation:
The Minister of Safety and Security v Nancy MSI (273/2018) [2019]
ZASCA 26 (28 March 2019)

Coram:

Navsa AP, Majiedt, Mathopo, Schippers JJA and Eksteen AJA

Heard:

27 February 2019

Delivered:

28 March 2019

Summary:

Delict – assault by policeman – vicarious liability – deviation
case – application of legal principles.

ORDER

On appeal from: Eastern Cape Division of the High Court, Grahamstown (Lowe J and
Kahla AJA concurring):

The appeal succeeds with costs, including the costs of two counsel.
The order of the court a quo is set aside and is replaced with the following:
‘(a) The appeal succeeds with costs.
(b) The order of the Magistrate is set aside and replaced with the following:
‘The plaintiff’s claim is dismissed with costs.’

______________________________________________________________________

JUDGMENT
______________________________________________________________________

Eksteen AJA (Navsa AP, Majiedt, Mathopo and Schippers JJA concurring):

[1] The dispute in this matter raises the vexed issue of vicarious liability of the
appellant (the Minister) for the conduct of his servants who have deviated from the course
and scope of their employment. The respondent (Ms Msi) was assaulted by her former
suitor, Warrant Officer Thambo (Thambo), a policeman in the employ of the South African
Police Services (SAPS), during a private meeting at the home of her employer. Thambo
was summoned to the residence by Ms Msi in order to discuss personal affairs, which are
set out in greater detail below, when the assault occurred. She instituted action against
the Minister claiming damages which she allegedly suffered in consequence of the

injuries she sustained in and as a result of the assault. She obtained judgment in her
favour in the Regional Court, Grahamstown which was confirmed on appeal by the High
Court, Grahamstown. The current appeal is directed against that judgment and it
proceeds with special leave obtained from this court.

Background
[2] The sad saga giving rise to Ms Msi’s claim unfolded in the usually tranquil seaside
village of Kenton-on-Sea (Kenton) in the Eastern Cape. Ms Msi, a 52 year old woman
who was employed as a domestic worker, had previously been engaged in a lengthy
intimate relationship with Thambo which had ended in 1996 when Thambo left to live in
Johannesburg. He later returned to Kenton and, although they did not resume their
relationship, they remained close friends. Thambo’s brother, Madala, and his girlfriend
formed part of their social circle. During February 2013, tension arose within the friendship
as Ms Msi suspected that Thambo was engaged in an unduly intimate relationship with
Madala’s girlfriend. She had witnessed the two of them kissing in a motor vehicle in
Kenton. At approximately the same time Ms Msi became aware of inexplicable animosity
towards her from Madala’s girlfriend, who had made abusive statements to and of her.
Unsurprisingly, she felt offended by this conduct.

[3] Ms Msi’s alleged observation of the perceived intimacy between Thambo and
Madala’s girlfriend had come to the knowledge of Madala and he requested to meet with
Ms Msi at his home so that they could discuss the matter. Initially, she was reluctant and
declined to commit to such a meeting. In due course, however, she agreed to such a

meeting on condition that it be held at the house of her employer and on the basis that
‘there isn’t any violence that will occur’. The meeting was accordingly scheduled for 20
February 2013.

[4] Initially, Ms Msi testified that the meeting was arranged only to discuss the abusive
utterances by Madala’s girlfriend. However, in cross-examination, she was constrained
to acknowledge that the illicit affair between Thambo and Madala’s girlfriend was also on
the agenda. In these circumstances, Thambo was also summoned to the meeting.

[5] On the day of the meeting, Thambo was officially on duty performing crime
prevention patrol duties and attending to complaints. He was not authorised to attend
private meetings during working hours. He was dressed in full uniform and armed with his
official firearm carrying his issued handcuffs and he travelled in a marked police vehicle.
Although police on patrol duty are required to work in pairs, Thambo proceeded without
his partner, no doubt because he perceived the meeting to be a private affair, to fetch
Madala, his girlfriend and another unnamed woman. The four of them travelled in the
police vehicle to Ms Msi’s place of employment. The use of a police vehicle for private
purposes was prohibited by police regulation.

[6] There is no evidence that any of the attendees, save for Ms Msi, knew that the
utterances by Madala’s girlfriend were to be discussed at the meeting, nor that they were
raised for discussion at the meeting before it descended into chaos as set out below. As
the meeting commenced Ms Msi immediately raised the alleged illicit affair between

Thambo and Madala’s girlfriend for discussion. This elicited an angry response from
Thambo who proceeded to assault Ms Msi. He struck her with a clenched fist and with
his police handcuffs. As she screamed for help, her employer’s son came to her
assistance and separated the parties. These events brought the meeting to an abrupt
end.

[7] There is a dearth of information relating to the immediate stimulus which lead to
the assault. Neither the trial court nor the court a quo gave any consideration to the
sequence of the events at the alleged meeting. It can, however, safely be accepted on a
conspectus of the evidence that the assault occurred when Thambo was confronted with
his alleged conduct with Madala’s girlfriend.

[8] Against this background, the court a quo held the Minister vicariously liable for the
conduct of Thambo. The sole question in the appeal is whether it was correct in this
finding.

The test for vicarious liability
[9] As a general rule, 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 reasonably incidental to it. In F v Minister
of Safety and Security 2012 (1) SA 536, Mogoeng J explained:
‘Two tests apply to the determination of vicarious liability. One applies when an employee commits
the deed while going about the employers business. This is generally regarded as the “standard

test”. The other test finds application where wrongdoing takes place outside the course and scope
of employment. These are known as “deviation cases”.’1
In this matter the court a quo correctly held, and it is common cause, that Thambo was
not advancing the interests of his employer in any way, whether improperly or otherwise.
He was not acting in the course and scope of his employment. This is accordingly a
‘deviation case’.

[10] The legal foundation of the test for vicarious liability in deviation cases was initially
developed in two decisions of this court during the previous century; Feldman (Pty) Ltd v
Mall 1945 AD 733 and Minister of Police v Rabie 1986 (1) SA 117 (A). The test was further
refined by the Constitutional Court in K v Minister of Safety and Security 2005 (6) SA 419
(CC) and in F v Minister of Safety and Security.2 It is instructive to have regard to these
developments before seeking to apply the test to the facts of the present case.

[11] In Feldman a servant of the defendant had been given custody of a motor vehicle
and a number of parcels with instructions to drive the vehicle and to deliver the parcels to
various customers in town. Having completed his deliveries he was to return the vehicle
to a certain garage. Instead, however, he drove the vehicle to a place some distance
away, on his own business, and there consumed alcohol which significantly impaired his
driving ability. Shortly after departing from this location and on route back to the garage
he collided with and killed the father of two minor children. This court held that he had
never entirely abandoned his master’s work as he had throughout retained the custody

1 F v Minister of Safety and Security [2011] ZACC 37; 2012 (1) SA 536 para 41.
2 Ibid.

and control of the vehicle on behalf of his master and that the master was therefore liable
for his negligence.

[12] In the course of his judgment, however, Watermeyer CJ discussed the common
law position relating to vicarious liability. He stated:
‘If an unfaithful servant, instead of devoting his time to his master’s service, follows a pursuit of
his own, a variety of situations may arise having different legal consequences.
(a) If he abandons his master’s work entirely in order to devote his time to his own affairs then his
master may or may not, according to the circumstances, be liable for harm which he causes to
third parties. If the servant’s abandonment of his master’s work amounts to mismanagement of it
or negligence in its performance and is, in itself, the cause of harm to third parties, then the master
would naturally be legally responsible for that harm. . . If, on the other hand, the harm to a third
party is not caused by the servant’s abandonment of his master’s work but by his activities in his
own affairs, unconnected with those of his master, then the master would not be responsible.’3

[13] Watermeyer CJ also discussed the reasons for imposing vicarious liability on a
master and explained:
‘I have gone into this question more fully than seems necessary, in the hope that the reasons
which have been advanced for the imposition of vicarious liability upon a master may give some
indication of the limits of a master’s legal responsibility, and the reasons are to some extent
helpful. It appears from them that a master who does his work by the hand of a servant creates a
risk of harm to others if a servant should prove to be negligent or inefficient or untrustworthy; that,
because he has created this risk for his own ends he is under a duty to ensure that no one is

3 Feldman (Pty) Ltd v Mall 1945 AD 733 at 742.

injured by the servant’s improper conduct or negligence in carrying on his work and that the mere
giving by him of directions or orders to his servant is not sufficient performance of that duty. It
follows that if the servant’s acts in doing his master’s work or his activities incidental to or
connected with it are carried out in a negligent or improper manner so as to cause harm to a third
party the Master is responsible to that harm.’4

[14] Rabie was decided some forty years after Feldman. In Rabie, an off-duty mechanic
employed by the South African Police and dressed in civilian clothes carried out an arrest
purely for his own purposes. He was not employed to perform law enforcement duties
and he had clearly not acted in the course and scope of his employment. At the time of
the arrest, however, he introduced himself as a policeman and after arresting his victim
took him to the police station, filled out a docket, wrongfully charged his victim with
attempted housebreaking and detained him. In the course of the judgment Jansen JA
stated:
‘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 a 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 . . .’ 5

4 Ibid at 471.
5 Minister of Police v Rabie 1986 (1) SA 117 (A) at 134C-E.

[15] K came before the Constitutional Court in 2005. It concerned the unlawful kidnap
and rape of an innocent woman by three policemen on duty. K had been on a date with
her boyfriend. The arrangement had been that he would take her home at the end of the
evening, but he had met up with a former girlfriend during the course of the evening which
led to a disagreement between K and her companion. When she asked him to take her
home he refused and she therefore decided to look for a telephone in order to call her
mother so that she could collect her. As there was no telephone available at the venue
where they were she proceeded on foot to a nearby petrol station. There too she was
unable to obtain access to a telephone. However, in the shop attached to the petrol station
a policeman in full uniform entered. He was the driver of a marked SAPS vehicle and
addressed her in fluent Afrikaans asking where she was headed. She advised that she
wanted to go home and he offered to take her there. In the vehicle there were two other
members of the SAPS, also dressed in full uniform. They were all on duty. Instead of
taking her home, however, they kidnapped and raped her.

[16] The Constitutional Court accepted the test enunciated in Rabie as point of
departure and further refined the test in order to give effect to Constitutional norms. It held
that in seeking to establish what constitutes a ‘sufficiently close link’ the court should
consider the need to give effect to the spirit, purport and object of the Constitution. It
referred with approval to the dicta in Feldman and Rabie which I have set out above and
O’ Regan J proceeded to state, in respect of deviation cases:
‘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.’6

[17] The Constitutional Court concluded that the police officers’ conduct bore a
sufficient connection to their employment as police officers to attach vicarious liability to
the Minister. In applying the new refined tests for vicarious liability three considerations
weighed heavily with the court; (a) the police officers and their employer had a statutory
and constitutional duty to prevent crime and to protect members of the public; (b) the
police officers had offered to assist K and she had accepted their offer and by doing so,
reposed her trust in the police officers in uniform in circumstances where it was
reasonable for her to do so; and (c) there had been a simultaneous commission and
omission. The police committed the rape on K; simultaneously they had omitted to protect
her from harm which they had a general and special duty to do.

[18] In K, however, the Constitutional Court sought only to lay down the legal
parameters. O’ Regan J went on to explain:
‘The common - law test for vicarious liability in deviation cases as developed in Rabie’s
case and further developed earlier in this judgment need to be applied to new sets of facts
in each new 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

6 K v Minister of Safety and Security 2005 (6) SA 419 (CC) para 44.

be developed. The tests 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.’7

[19] The facts in F were similar to those in K. A young teenage girl had been to a night
club in George. In the early hours of the morning she found herself stranded without
transport. She was offered a lift home by an adult man in civilian clothes in an unmarked
vehicle. As it turned out he was a policeman on standby duty and the vehicle was a police
vehicle which he was entitled to use by virtue of the police functions which he might be
required to fulfil if called upon. The vehicle was fitted with a radio which F noticed when
she entered the vehicle. Whist travelling she noted a pile of police dockets bearing the
name and the rank of the police official. Upon enquiry he advised that he was a private
detective, which F understood to mean that he was a policeman. Contrary to his earlier
undertaking, however, he drove the vehicle to a secluded spot outside of the town. The
direction in which he drove caused F to become suspicious and when the vehicle came
to a stop at the secluded spot F alighted and fled. A short while later the vehicle departed
and F returned to the road side in order to seek a lift back to town. A vehicle approached
and stopped to afford her a lift. Remarkably, it was the same vehicle and the same driver.
Despite her misgivings she reluctantly boarded the vehicle. This she did partly owing to

7 Ibid para 45.

her desperate situation and partly because she believed that he was in fact a policeman
and that she could for that reason trust him. He abused that trust and raped her.

[20] In F, the majority in the Constitutional Court held that there was a sufficiently close
link between the conduct of the policeman and the business of his employer. Mogoeng J
writing for the majority, again had an occasion to discuss the nature of the test to be
applied. He held:
‘As O Regan J stated in K the second question “does not raise purely factual questions but mixed
questions of fact and law”. Accordingly, several interrelated factors have an important role to play
in addressing the question whether the Minister is vicariously liable for the delictual conduct of Mr
Van Wyk. The normative components that point to liability must here, as K indicated, be expressly
stated. They are: 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 policemen’s commission of rape and
omission to protect the victim; and the existence or otherwise of an intimate link between the
policemen’s conduct and his employment. All these elements complement one another in
determining the state’s vicarious liability in this matter.’8

[21] On a consideration of all these authorities and applying the test which emerges,
this court, in Minister of Safety and Security v Booysen [2016] ZASCA 201, summarised
the approach to be adopted thus:
‘The question remains whether in this case there is a sufficient link between the deceased’s
conduct and his employment to impose vicarious liability on the minister. That question can only

8 F fn 1 above para 52.

be answered by considering the normative factors referred to earlier, and the countervailing
factors, thus conducting a balancing act.’9
It seems to me that this approach constitutes a fair reflection of what is required in terms
of K and F.

Application of the test
[22] Applying the test in K in the present case the answer to the first question, which is
subjective, does not establish liability. Thambo’s attendance at a meeting with Ms Msi
was purely for his own purposes. He was summoned to attend a private meeting relating
to personal affairs and he had no police function to perform there. Ms Msi had not
summoned him by virtue of his employment as a police officer. She had no criminal
complaint to lay and, on her own evidence, what was to be discussed was purely personal
and between friends. There was nothing in the conduct of Thambo that suggests that he
subjectively intended to advance the interests of the SAPS.

[23] I turn therefore to consider the second leg of the inquiry, whether there is a
sufficiently close link between the assault of Ms Msi and the business of the SAPS. This
enquiry is objective and it involves issues of fact and law. The point of departure is the
recognition that the constitutional duty resting on the state, and more particularly on the
police, to protect members of the public against crime and violence provides a normative
basis for holding the state liable for the wrongful conduct by policemen. This liability,

9 Minister of Safety and Security v Booysen [2016] ZASCA 201 para 19.

however, will only be imposed where there is a ‘sufficiently close connection’ between the
conduct of the policemen and their employment.10

[24] In K and in F the trust which the public is entitled to place in the police and which
the victims had placed in the policemen involved was pivotal to the conclusion reached.
It weighed heavily with the court that an innocent citizen in distress had reposed her trust
in the police as she was entitled to do and the policeman in issue had breached that trust.
Thus, in F, Mogoeng J held:
‘ In addressing the question of Mr Van Wyk’s personal liability and his employer’s vicarious liability
it should make little difference that he was on standby duty, for which he was being paid. What
matters is whether the trust placed in him as a policeman by a vulnerable member of the public,
creates a sufficiently close connection between his delictual conduct and his employment.’11

[25] The trust in issue in F was explained thus:
‘. . . Additionally, if his employment as a policeman secured the trust of the vulnerable person
placed in him, and 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 contravene, the law’.12

10 F fn 1 above para 61.
11 Ibid para 68.
12 Ibid para 66.

[26] The court a quo held that there was an element of trust involved in the meeting to
which Thambo was summoned, because the meeting was essentially a meeting to
resolve conflict which had arisen as a result of an injuria, or an alleged injuria. It reasoned
that this necessarily meant that the parties at the meeting were entitled to place their trust
in Thambo to maintain decorum, law and order. I disagree with this reasoning.

[27] It is true that Thambo was on duty, dressed in uniform and arrived at the meeting
in a marked police vehicle. He was armed with a police issued firearm and handcuffs and
he utilised the handcuffs in the course of the assault. These were factors which influenced
the court a quo to come to the conclusion that a sufficiently close link had been
established between the conduct of Thambo and the business of SAPS.

[28] There is, however, nothing in the evidence to suggest that Thambo knew that the
alleged injuria would be raised at the meeting and, as a fact, it was not raised. As
illustrated earlier herein, Ms Msi did not place her trust in Thambo by virtue of him being
a policeman. From where she stood he was not a policeman employed to protect her but
rather an old friend called to the meeting by virtue of their friendship and in order to
confront him with his own misconduct. The commission of the delict was not facilitated by
his employment as a policeman and the assault would have occurred in any event. In the
context of the present case the fact that he was on duty, dressed in uniform and carrying
paraphernalia issued to him in the course of his employment made no difference. Had he
arrived in a private vehicle and in civilian clothes, without handcuffs, whilst off duty the
result, it seems to me, would have been precisely the same. In fact, the evidence suggests

that she had anticipated a possible violent response from Thambo, hence her suggestion
to Madala that there should be no violence.

[29] I do not lose the sight of the fact that the trust which the public are generally entitled
to repose in the police, is a factor to be considered in the application of the test for
vicarious liability. In Booysen this court held:
‘A careful and close reading of K and F reveals that the element of trust was central to the finding
that there a sufficiently close link connection between the acts of the police officers and their
employment, hence, vicarious liability. It is indeed doubtful, whether, without the element of trust,
the outcome of the two cases would have been the same. K is explicit on this aspect:
“[57] In sum, the opportunity to commit the crime would not have arisen but for the trust the
applicant placed in them because they were policemen, a trust which harmonises with the
constitutional mandate of the police and the need to ensure that mandate is successfully
fulfilled”.’13

[30] In Booysen a police officer on duty had utilised his police issue firearm to shoot his
girlfriend. The fact that the police firearm was utilised in the shooting weighed heavily with
the trial court when it held the minister liable for the conduct of a police official. On appeal,
however, this court held:
‘The finding of liability based on the mere fact of the SAPS issuing a firearm to a police officer,
amounts to the imposition of the strict liability, which is impermissible. For liability to arise under
such circumstances, there must be evidence that the police officer in question was, for one reason
or the other, known to be likely to endanger other people’s lives by being placed in possession of

13 Booysen fn 9 above para 20.

a firearm, and despite this, he or she was nevertheless issued with the firearm or permitted to
continue possessing it. Such was the situation in F, where the police officer was retained in the
employ of the SAPS as a detective despite previous criminal convictions.’14

[31] I do not think that the use of the handcuffs leads to the conclusion that the
employment of Thambo provided the means to commit the crime. Thambo clearly reacted
angrily to what he perceived to be provocation and struck Ms Msi repeatedly with
clenched fists before striking her with his handcuffs. Had he not been in possession of
handcuffs he would in all probability have utilised some other object to strike Ms Msi. It
was merely a convenient object which was coincidentally available to utilise in the course
of the assault which was already in progress. As stated earlier, the assault would, on the
facts of this case, have occurred in any event.

[32] There is a further factor which on the facts of the present matter is deserving of
consideration. It is that Ms Msi summoned Thambo to the meeting while he was on duty,
which was contrary to police instructions. In Bezuidenhout v Eskom 2003 (3) SA 83 (SCA)
an employee of Eskom had offered a lift to a minor child in a vehicle owned by Eskom
and whilst on duty. This was contrary to the express instructions to the employee not to
offer lifts to members of the public. In the course of such conveyance a collision occurred
and the minor child was injured. This court held that Eskom was not vicariously liable for
the conduct of its employee because he had been conveying the minor child contrary to
express instructions.

14 Ibid para 17.

[33] In the course of the judgment Heher AJA considered an earlier judgment of South
African Railways and Harbours v Marais 1950 (4) SA 610 (A) (SAR and H ) and held:
‘In the specific circumstance of SAR and H v Marais (and those of the present case) it would be
unfair to hold the employer liable to the passenger who has associated himself, albeit innocently,
with the forbidden conduct of the employee and who, in effect, assumes the risk of the
association.’15
He proceeded to state:
‘Moreover, application of the elements of the standard test which are perhaps more prominently
applied today than in 1950, namely the subjective state of mind of the employee, and the objective
test of a sufficiently close link between the servant’s acts  in his own interest and for his own
purposes and the business of the master. . . would both point to conduct on the driver’s part which
fell beyond the scope of his employment; the driver knew perfectly well that he was prohibited
from allowing Marais on to the engine and had no intention of furthering his master’s affairs by
doing so, and the reality was that Marais’ presence added nothing to the interests of the
administration in the proper operation of its service – the “close connection’’ was demonstrably
absent.’16

[34] Bezuidenhout was decided prior to K and F. In K, however, O’ Regan J
distinguished the facts of Bezuidenhout and those in SAR and H from the situation in K.
She proceeded to state, however:
‘Even were the transportation of the applicant to have been in breach of the standing order,
however, it is clear that the fact that employees breach a rule of their own employment is not

15Bezuidenhout v Eskom 2003 (3) SA 83 (SCA) para 23.
16 Ibid para 24.

sufficient of itself always to avoid employer liability. It remains a factor to be considered in
determining whether the connection between the wrong and the employment is sufficiently close
or not. It cannot on its own always be determinative. In this case, the appellant accepted the
assistance offered by the police. The fact that this may have been against standing order is not
sufficient on its own in view of the other factors already mentioned to mean that the respondent
cannot be vicariously liable.’17

[35] The consideration of a breach of a rule of the employment of a servant remains
relevant for purposes of determining whether there is a sufficiently close link between the
conduct of the wrongdoer and the business of his employer. In the present case, Ms Msi
knew that Thambo was a police official. On her own evidence she knew that he was on
duty and nevertheless summoned him to the meeting, not for any police purpose, but for
a private matter. The attendance of a private meeting while on duty and the use of a police
vehicle for purposes thereof was, on the undisputed evidence, prohibited. In these
circumstances it may, on the facts of this case, rightly be said that she has associated
herself with the forbidden conduct.  This factor and the absence of trust operate as
countervailing factors to the normative considerations.

[36] For these reasons I find that there is not a sufficiently close connection between
the business of the SAPS and the conduct of Thambo to justify the imposition of vicarious
liability.

[40] In the result:

17 K fn 6 above para 55.

The appeal succeeds with costs, including the costs of two counsel.
The order of the court a quo is set aside and is replaced with the following:
‘(a) The appeal succeeds with costs.
(b) The order of the Magistrate is set aside and replaced with the following:
‘The plaintiff’s claim is dismissed with costs.’

__________
J.W. Eksteen
Acting Judge of Appeal

Appearances:

For Appellant:

EAS Ford SC (with him J Bester)

Instructed by:

Whitesides Attorneys, Grahamstown

State Attorney, Bloemfontein

For Respondent:

A G Dugmore SC (with him JR Koekemoer)

Instructed by:

N. N. Dullabh & Co., Grahamstown

Symington & De Kok, Bloemfontein