Following the 2009 shooting of a Rwandan refugee in the city centre by two off-duty policemen, the Pretoria High Court has found that the minister of police is vicariously liable for the damages the man’s great aunt can prove she has suffered due to his death.
Paul Ndayambaje was shot in cold blood on November 2, 2002, on the corner of Bosman and (then) Church streets. He was 84-year-old Charlotte Ayinkamiye’s sole provider.
Ayinkamiye and her family fled the genocide in Rwanda in 1994 and settled in South Africa in 2006 as refugees.
Ndayambaje, whom she had adopted when he was two, was with Ayinkamiye when she arrived in South Africa.
He was the son of her sister, who had died. In terms of Rwandan law, the closest relative of a child whose parents have died is obliged to adopt the child.
Ndayambaje worked as a hawker and gave his great aunt about R4 500 a month.
It was argued in court that under the circumstances, Ndayambaje owed Ayinkamiye a duty of care.
He was murdered by constables Joel Kekana and Godfrey Masinga, who at the time were stationed at the Pretoria Central police station.
The policemen took the meat that Ndayambaje was braaiing on the pavement. Ndayambaje sold braaied meat to try to make ends meet.
The constables refused to pay for the meat and an argument ensued. The vendor pelted the cops with bottles, demanding payment. One of the officers shot him with his service pistol.
The policemen were each sentenced to 10 years’ imprisonment.
Acting Judge Jan Hiemstra said the only issue was whether the minister of police was vicariously liable for the wrongful act of the policemen, who were also cited as defendants in this civil suit.
They had not been on duty at the time of the incident and had not been performing any duties as policemen, he said.
There were two situations in which vicarious liability arose, the judge said. The first was when an employee committed an act while going about the employer’s business. The other was where the wrongdoing took place outside the scope of employment – known as a “deviation case” – as in this instance.
Judge Hiemstra said it was not always sufficient for an employer to show that the employee had acted in his own interests. The principles of vicarious liability had evolved under the constitution, especially in respect of the police service.
The judge said there was therefore a constitutional duty on the SAPS and its officials to protect the lives and property of inhabitants of the republic.
Even counsel for the minister conceded that in terms of the law the minister was vicariously liable.
The judge also found the constables were personally liable for whatever damages the elderly woman could prove she had suffered.
The amount due to her is to be determined at a later stage.