THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 1212/19

In the matter between:
THE MINISTER OF POLICE

APPELLANT

And

UNDERWRITERS AT LLOYDS OF LONDON
RESPONDENT

Neutral citation: The Minister of Police v Underwriters at Lloyds of London
(Case no 1212/19) [2021] ZASCA 72 (8 June 2021)
Coram:
WALLIS and MAKGOKA JJA and KGOELE, PHATSHOANE
and GOOSEN AJJA
Heard:
14 May 2021
Delivered: This judgment was handed down electronically by circulation to
the parties’ legal representatives by email, publication on the
Supreme Court of Appeal website and release to SAFLII. The

date and time for hand-down is deemed to be 09h45 on 8 June
2021.

Summary: Delict – claim against Minister by insurance underwriters on
ceded claim – involvement of members of police in robbery of company
providing security and cash management services to banks – employee of
company conspiring with robbers – proposed amendment of plea to introduce
defence based on principles of ex turpi causa non oritur actio and in pari
delicto potior est conditio defenditis alternatively common law principle of
illegality – availability of proposed defence – respondent alleged to be
vicariously liable for conduct of employee – no basis to attribute fault to
respondent to found participation in illegal conduct – proposed amendment
rendering plea excipiable - position of concurrent and joint wrongdoers
discussed––appeal dismissed.

_
ORDER

On appeal from:  Gauteng Division of the High Court, Pretoria (Mavundla
J, sitting as court of first instance).
The appeal is dismissed with costs, such costs to include those consequent
upon the employment of two counsel.

JUDGMENT

Goosen AJA (Wallis and Makgoka JJA and Kgoele and Phatshoane
AJJA concurring)
[1] A dispute over a proposed amendment to the appellant's plea is the
subject of this appeal. It arose in the following circumstances. On the night
of 27 and 28 April 2014 a group of robbers gained entry to the premises of
SBV Services (Pty) Ltd (SBV) in Witbank, accessed a secure vault and made
off with approximately R100 million, which SBV was holding on behalf of
several banks. Investigation of the robbery established that a number of
persons, including two police officers, Warrant Officer Khubeka (Khubeka)
and Detective Constable Lekola (Lekola) were involved in the planning and
execution of the robbery. The investigation also established that an employee
of SBV, Ms Gift Nkosi (Ms Nkosi), who was employed as a security
compliance officer, had conspired with Khubeka and Lekola and had
provided information to them to facilitate the commission of the offence.

[2] The respondent, Underwriters at Lloyds of London (the Underwriters),
had provided insurance cover to SBV against this type of event. This was in
terms of a written contract of insurance rendering them liable to compensate
SBV for losses that it might incur arising from the provision of the cash
handling and storage services it offered to its clients. Under the terms of the
written contracts concluded with its clients, Standard Bank, First Rand Bank,
Absa Bank and Nedbank, SBV was said to be obliged to compensate them
for any and all losses incurred as a result of the theft or destruction of cash
held by it on behalf of its banking clients.1 They have done so and in turn the
Underwriters paid SBV in terms of the insurance policy.

[3] Thereafter the Underwriters took cession of the banks' claims against
SBV and third parties, including the Minister, and cession of SBV’s claims
arising from the robbery. It instituted a delictual claim against the Minister
of Police in which it claimed damages in an amount in excess of R100
million. The cause of action was based on the allegation that the appellant’s
employees, Khubeka and Lekola, had acted within the course and scope of
their employment as police officers in failing in their legal duties to prevent
the robbery and not to participate in criminal activity. It was alleged that this
rendered the appellant, the Minister of Police (the Minister), vicariously
liable for the losses incurred as a result of the robbery.

[4] The Minister raised defences founded upon the terms of the contractual
relationship between SBV and its clients which, it was alleged, limited the
liability of SBV. It was accordingly pleaded that the Underwriters had not

1 There were some differences between the contracts concluded with the different banks but these did not
affect the issues before us.

incurred liability to compensate SBV and therefore had not suffered losses
for which the Minister was liable. In relation to the element of vicarious
liability, the Minister denied that it was so liable. A number of admissions
had been made in relation to these defences at pre-trial conferences. Both the
defences and the admissions remain extant and it is unnecessary for us to
consider them further.

[5] The trial was scheduled to commence in the high court on 7 October
2019. Shortly before the commencement of the trial the Minister gave notice
of its intention to amend its plea. The trial court, Mavundla J, after hearing
argument at the commencement of the trial, dismissed the application in an
ex tempore judgment. On 9 October 2019 the trial court furnished reasons for
the order in the light of an intention to appeal the order. It thereafter granted
leave to appeal to this court. The trial was, inevitably, postponed.

[6] The proposed amendment sought to delete paragraph 11 of the plea
(which contained a blanket denial of facts pleaded in relation to the robbery
at SBV’s premises) and replace it with the following averments:
‘11.1 Save for admitting that a robbery occurred at the place and date alleged, Defendant
has no knowledge of the remainder of the allegations and accordingly deny same.
11.2
Defendant further pleads that Ms. S. G. Nkosi, who was during the relevant period
employed by SBV Witbank (“SBV”) as security and compliance officer, wilfully and
intentionally participated in the planning, preparation and execution of the robbery by
inter alia;
What followed were a number of subparagraphs that detailed conduct on the
part of Ms Nkosi indicative of her collaboration and conspiracy with the
co- perpetrators of the robbery. The pleading then proceeded:

11.3
Defendant denies, based on the principles of ex turpi causa non oritur actio and /
or in par delicto and / or the common law principle that courts ought not to sanction or
encourage illegal activity that the Plaintiff has a claim against Defendant for inter alia the
following reasons:
11.3.1 SBV is vicariously liable for the conduct of Gift [Ms. Nkosi] as pleaded above;
and
11.3.2 Gift intentionally participated in the robbery that allegedly caused the damages
Plaintiff now claims from the Defendant in this action; and
11.3.3 SBV participated in the alleged illegal conduct and is a joint wrongdoer who
intentionally planned and perpetrated the robbery which allegedly caused damages to
SBV; and
11.3.4 SBV’s claim against Defendant was ceded to Plaintiff and / or Plaintiff claims on
the basis of subrogation.’

[7] The Underwriters opposed the proposed amendment on the basis that
the defence sought to be pleaded was bad in law; that it lacked averments
necessary to sustain a cause of action; and, accordingly, that the amendment
would render the plea excipiable. The trial court dismissed the application to
amend the plea on two bases. It held that the vicarious liability of SBV for
the unlawful conduct of Ms Nkosi cannot be used “as a shield to ward off” a
claim directed against the Minister. As such the proposed amendment did not
introduce a triable issue. The court also held that the belated introduction of
the amendment, given that the facts supporting the amendment had been
known to the Minister for some time, militated against granting the
amendment.

[8] Before this court it was argued that the trial court’s conclusion that the
amendment did not introduce a triable issue, was wrong. The argument was

based on what counsel contended was a generally applicable principle of the
common law, that a court will not sanction illegality. On this basis, so it was
argued, the maxims ex turpi causa non oritur actio and in pari delicto potior
est conditio defenditis applied. The pleaded facts, so the argument went,
established that SBV was a ‘co-perpetrator’ insofar as the robbery was
concerned. Accordingly, it (and by extension the Underwriters) could not
profit from its own wrongdoing by pursuing a claim against the other
wrongdoer. It was submitted that, insofar as might be necessary, the common
law ought to be developed to recognise the application of the principle of
illegality in relation to a delictual cause of action.

[9] Counsel for the Underwriters argued that the pleaded ‘defence’ was
founded upon a misconception of the basis upon which SBV may be held
liable for the conduct of its employee, Ms Nkosi. It was submitted that no
basis existed to attribute Ms Nkosi’s intentional and unlawful conduct to
SBV. SBV was accordingly not a party to any illegal conduct and no basis
existed to non-suit it (and by extension the Underwriters) against those joint
wrongdoers who conspired to cause SBV harm through their unlawful
conduct.

[10] The scope and operation of the maxims ex turpi causa and in pari
delicto was definitively set out by this court in Jajbhay v Cassim.2
Watermeyer JA after tracing the condictio ob turpi vel iniustum causam and
the exceptions thereto said the following:3

2 Jajbhay v Cassim 1939 AD 537.
3 Ibid at 550 – 551.

‘The principle underlying the general rule is that the Courts will discourage illegal
transactions, but the exceptions show that where it is necessary to prevent injustice or to
promote public policy, it will not rigidly enforce the general rule. The real difficulty lies
in defining with any degree of certainty the exceptions to the general rule which it will
recognise.’

[11] In a concurring judgment Stratford CJ identified the essential character
of the maxims in the following terms:4
‘We are concerned with the application of two legal maxims taken from Roman law by
all modern civilised legal systems. The first is the maxim ex turpi causa non oritur
actio and the second in pari delicto potior conditio defendentis. They have been called
"cognate" doctrines, an expression, which I think, perhaps has served to confuse their
essential distinctive character. In my view the first maxim prohibits the enforcement of
immoral or illegal contracts and the second curtails the right of the delinquents to avoid
the consequences of their performance or part performance of such contracts.’
(Emphasis added.)

[12] Stratford CJ went on to explain that:
‘The moral principle which inspired the enunciation of those two maxims is obvious and
has often been expounded. It is to discourage illegality and immorality and advance public
policy.’

[13] The exposition of the law in Jajbhay v Cassim has been consistently
followed by our courts since 1939. Reference need not be made to the many
cases which have referred to and applied the principles it enunciated.5

4 Ibid at 540.
5 For a more recent treatment see Afrisure CC and Another v Watson NO and Another [2008] ZASCA 89;
2009 (2) SA 127 (SCA), [2009] 1 All SA 1 (SCA).

[14] In debating the argument that the maxims ex turpi causa non oritur
actio and in pari delicto potior conditio defenditis are to be applied in the
context of a delictual claim, counsel on both sides referred us to a Canadian
judgment and a number of English cases dealing with these principles. They
could not, however, point to any South African authority which suggested
that these maxims have found application outside the field of contract and
restitution under the condictiones, on which our law of enrichment is based.
Nor could I find any such authority. For reasons which will be set out more
fully below it is not necessary to decide whether these maxims, as presently
applied by our courts, find application in the context of a delictual claim and
if so, whether a defence based upon such principles is sound in law. Nor is it
necessary to traverse the foreign authorities to which reference was made or
to consider the effect of the judgment in Patel v Mirza6 by which the English
law on the maxims has been clarified in terms very similar to the law as laid
down in Jajbhay v Cassim.

[15] The reason for this lies in the manner in which the Minister has framed
the proposed amendment of the plea. This court is not concerned with the
merits of the plea. It is concerned with a far narrower determination, namely
whether the pleading introduces a sustainable defence in the sense that it sets
out averments which if established at trial would afford a defence or whether
in its form it is excipiable.

[16]  In order to place the plea in a proper perspective it is necessary to
examine the nature of the claim by the Underwriters. They advanced their

66 Patel v Mirza [2016] UKSC 42; [2017] AC 467; [2017] 1 All ER 191 (SC).

claim on three distinct bases. First, they sued as cessionary of SBV's claim
against the Minister. Secondly, they sued on the basis that they had been
subrogated to SBV's claim in consequence of their obligation to indemnify
SBV against its liability to the banks. Thirdly, they sued as cessionaries of
the banks' claims against both SBV and the Minister. All three bases were
advanced in delict on the basis of a breach by the two policemen of a
'statutory, constitutional and/or legal duty' owed to SBV to prevent the
robbery and resultant loss and not to take part in such criminal activity. No
separate legal duty was alleged in relation to the claims ceded to the
Underwriters by the banks. Notwithstanding the absence of any such
allegation, it was alleged that the Minister became vicariously liable to each
of the banks and their retail customers for the loss each client sustained in the
robbery.7 It is unclear on what basis the Underwriters contended that a breach
of a duty owed to SBV gave rise to a claim by the banks against the Minister.

[17]   The first two bases pleaded by the Underwriters are based upon a
legal duty owed by the South African Police Service to protect SBV against
crime and to prevent the robbery. SBV possessed, but did not own, the money
that was stolen and alleged various bases upon which it nonetheless claimed
to have suffered loss as a result of its being stolen. The claim advanced by
the Underwriters on the first two grounds was therefore SBV's claim. This
leads to the first significant problem with the proposed amendment, namely
that it involves an allegation that SBV is vicariously liable for a theft from

7 The respondent's heads of argument ignored the first of these bases and suggested that the Underwriters
had a claim for the loss they had suffered due to the robbery in consequence of being liable to indemnify
SBV. Such a claim was not pleaded, does not appear to be based on any legal duty owed by the Minister to
the Underwriters and seems on the face of it to be entirely novel. As it was not pleaded it can be disregarded.

itself. In this regard Absa Bank v Bond Equipment (Pretoria) Pty Ltd8 is
instructive.

[18]  In that matter, Bond Equipment (the plaintiff) had instituted a claim
for damages against the Bank (the defendant) based on the alleged negligence
of the defendant’s employees. It was alleged that the plaintiff was the true
owner of non-transferrable cheques which were delivered to its employee,
one Steyn, who stole the cheques. The defendant collected the cheques for
payment to Bond Equipment (Pretoria) (not the plaintiff) an account set up
by Steyn. The defendant defended the action on the basis that it was absolved
from liability for its negligence because the plaintiff was vicariously liable
for Steyn’s conduct.

[19]  Harms JA, writing for the majority, said the following:
‘Two of the questions of law are interrelated and they are (a) whether the plaintiff is in
law vicariously liable for the actions of Steyn (its employee who stole the cheques) and
(b) whether the Bank is liable to the plaintiff for any negligent actions performed by its
employees in view of Steyn’s conduct as described in the stated case.
In order to answer these questions, it is necessary to understand the defence upon which
the Bank wishes to rely. Its case is that Steyn, acting within the course and scope of his
employment with the plaintiff, stole the cheques after they had come into his possession;
since Steyn was so acting as employee, the plaintiff is vicariously “liable” for his
intentional wrongful act; the Bank’s employees were merely negligent in collecting the
cheques on Steyn’s behalf; a plaintiff who acts with dolus (albeit through an employee)
cannot claim damages from a negligent defendant; therefore the Bank cannot be held
liable for the plaintiff’s loss.

8 Absa Bank v Bond Equipment 2001 (1) SA 372 (SCA); [2001] 1 All SA 1 (A).

In the court below Willis AJ had some difficulty with the formulation of question (a) and
redrafted it by asking whether the plaintiff is in law vicariously liable to the defendant for
the actions of Steyn (at 67I). Both the formulation and the original question tend to obscure
the issue. A plaintiff can never be “liable” to another for a delict committed against him.
The theft was not a delict vis-à-vis the Bank and vicarious liability on the part of the
plaintiff can therefore not arise. The question which should have been posed is whether
the plaintiff is answerable or responsible for the theft by Steyn, in other words, whether
his (intentional) wrongdoing can be taken into account in reducing or expunging the
liability of the concurrent wrongdoer (the Bank).’(Emphasis added)

[20] The passage I have emphasised from Harms JA's judgment is
applicable in the present case. Ms Nkosi's theft of the money in SBV's
possession, in conjunction with the other robbers, was not a delict vis-à-vis
the Minister. Accordingly, no question of vicarious liability on the part of
SBV for her actions arises as alleged in para 11.3.1 of the amendment. It
follows that SBV cannot have 'participated' in the robbery as alleged in para
11.3.3. The whole notion of someone participating in a robbery, where they
are both the person robbed and at the same time liable in delict for the actions
of the robber, is a contradiction in terms.9 The proper question, as Harms JA
pointed out, is whether the conduct of Ms Nkosi can be taken into account in
reducing or expunging the liability of the Minister.

[21] In this case SBV might be vicariously liable to its clients, the banks,
for harm they suffered in consequence of Ms Nkosi’s conduct, but it is not
vicariously liable to itself. If, as a consequence of delictual conduct on the
part of an employee, such as Ms Nkosi acting in concert with employees of
the Minister, SBV had suffered harm, SBV was entitled to institute a delictual

9 There may be a liability in contract, as in this case, as between SBV and the banks.

claim against the appellant and Ms Nkosi, or any other member of the gang
of robbers. Ms Nkosi could hardly contend in her defence that, by virtue of
the fact that her conduct would theoretically render SBV liable to another
party, SBV had no claim against her because her fault was to be attributed to
it. The delict was committed against SBV. For the same reason Ms Nkosi's
conduct cannot be attributed to SBV in order to enable the Minister to resist
the Underwriters' claim.

[22] That takes me to the next problem with the draft amendment, namely,
the allegation that the Minister and SBV were joint wrongdoers in relation to
the robbery. The distinction between joint wrongdoers and concurrent
wrongdoers was explained in Lloyd-Gray in the following terms:10
‘At common law a distinction is drawn between joint wrongdoers and concurrent
wrongdoers. …  Joint wrongdoers are persons who, acting in concert or in furtherance of
a common design, jointly commit a delict. They are jointly and severally liable.
Concurrent wrongdoers, on the other hand, are persons whose independent or “several”
delictual acts (or omissions) combine to produce the same damage … It was accepted by
this Court in Union Government (Minister of Railways) v Lee 1927 AD 202 that, subject
always to there being an intact chain of causation, one concurrent wrongdoer may be sued
for the full amount of the plaintiff’s loss, ie that concurrent wrongdoers are liable in
solidum …
….The distinction between joint and concurrent wrongdoers is of course now largely
academic in view of the provisions of the Act which recognise and regulate a right of
contribution between “joint wrongdoers” who are so defined as to include both joint and
concurrent wrongdoers at common law.
Joint wrongdoers are undoubtedly jointly and severally liable at common law. This has
always been so even when the one paying was not entitled to recover a contribution from

10 Nedcor Bank t/a Nedbank v Lloyd-Gray Lithographers (Pty) Ltd 2000 (4) SA 915 (SCA).

another. The absence of a right to a contribution inter partes has no effect on their joint
and several liability to the plaintiff. In the case of concurrent wrongdoers a right to a
contribution has generally been recognised …. But even if in a particular case such a right
were not to be afforded, that would not affect the nature of their liability to the plaintiff.
In any event, it is difficult to appreciate why a concurrent wrongdoer guilty of culpa who
pays a plaintiff in full should be precluded from having recourse against a concurrent
debtor guilty of dolus. At common law a defendant guilty of dolus could not raise a
defence of contributory negligence on the part of the plaintiff (Pierce v Hau Mon 1944
AD 175 at 197–198) and this rule and the denial of a right of recourse against a joint
wrongdoer were probably founded on the principle embodied in maxims such as ex dolo
malo non oritur actio and ex turpi causa non oritur actio…. Joint wrongdoers, having
committed the delict acting in concert or in furtherance of a common design, would
usually have acted wilfully. But if a concurrent wrongdoer guilty of culpa has recourse
against another concurrent wrongdoer similarly guilty of culpa it follows a fortiori that he
would have such right against a concurrent wrongdoer whose fault took the form of dolus.’

[23] I accept that Ms Nkosi and the two policemen, together with other
members of the gang,11 were joint wrongdoers in relation to SBV insofar as
the robbery was concerned. But that does not mean that their respective
employers are joint wrongdoers on the basis of vicarious liability for their
actions. As already pointed out SBV cannot be liable to itself for the robbery.
The only basis upon which it could be contended that SBV and the Minister
are joint wrongdoers would be in relation to an un-particularised duty owed
to the banks. But the pleaded basis for the Minister's alleged liability is a
breach of the legal duty to prevent crime and safeguard the public against it.12
The liability of SBV to the banks is contractual not delictual.13 Given the

11 Thirteen individuals were subsequently convicted of various charges and significant evidence was given
for the State by Ms Nkosi and another member of the gang.
12Minister of Safety and Security v Van Duivenboden [2002] 6 SA 431 (SCA) paras 21-22.
13 Trustees for the time being of Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd [2005]
ZASCA 109; 2006 (3) SA 138 (SCA); [2007] 1 All SA 240 (SCA) paras 21-26.

different legal bases for claims by the banks against both SBV and the
Minister they cannot be joint wrongdoers under the common law as alleged
in para 11.3.3.14

[24] The proposed plea, in my view, fundamentally misconstrues the
concept of vicarious liability. ‘Vicarious liability’ is a form of liability which
is imposed upon one person for the wrongful and unlawful conduct of
another. It is, in essence, a strict liability, that is, liability which arises through
no fault on the part of the person held liable. It is imposed by law on the basis
of the nature of the relationship between the actual wrongdoer and the person
held liable.15 Whether, in a particular case, the law requires that liability be
imposed is a matter informed by legal and public policy and the values that
underpin the operation of the law. In the present matter the application of the
principles by which, and the test for vicarious liability need not concern us.
What is at issue is the nature of the concept of vicarious liability itself, and
what the consequence is of a pleading premised thereupon.

[25] In Minister of Safety and Security v F16 Nugent JA said,
‘Vicarious liability has a long but uncertain pedigree. In essence, it may be described as
the liability that one person incurs for a delict that is committed by another, by virtue of
the relationship that exists between them. There are two features of vicarious liability in
its traditional form that are trite but they bear repetition. The first is that vicarious liability
arises by reason of a relationship between the parties and no more – it calls for no duty to
be owed by the person who is sought to be held liable nor for fault on his part. The second

14 The expression 'joint wrongdoer in the Apportionment of Damages Act 34 of 1956 encompasses both
joint and concurrent wrongdoers.
15 Minister of Safety and Security and Others v Van der Walt and Another [2014] ZASCA 174 (SCA), [2015]
1 All SA 658 (SCA) at par 23.
16 Minister of Safety and Security v F [2011] ZASCA 3; 2011 (3) SA 487 (SCA) at par 15.

feature is that it is secondary liability – it arises only if there is a wrongdoer who is
primarily liable for the particular act or omission.17

[26] Since vicarious liability is, insofar as the liable party is concerned, not
fault based, the imposition of liability upon that person does not involve the
attribution of fault. In simple terms this means that the intention to commit
unlawful conduct on the part of the primary wrongdoer (in this instance Ms
Nkosi) is not attributed to the party secondarily liable (in this instance SBV).
Paragraph 11.3.3, as pleaded, is therefore, as a matter of law, in conflict with
the concept of vicarious liability pleaded in paragraph 11.3.1 of the proposed
amendment

[27] The Underwriters claims, on the basis of having taken cession of the
banks’ claims against wrongdoers who caused them harm consequent upon
the robbery, are delictual claims which, at least notionally, may be pursued
against several parties. The possibilities are that they lie against the Minister
on the basis of its vicarious liability for the conduct of Khubeka and Lekola;
against SBV on the basis of its vicarious liability for Nkosi’s conduct, and
probably directly against Nkosi and other members of the gang. In each
instance the basis upon which liability would need to be established would
differ – a different set of duties would be involved and a different set of policy
considerations would apply. In the case of the Minister and SBV, the actions
for which they are said to be vicariously liable are independent of one
another, but contributed to the same loss to the banks. They would be

17 Although the Constitutional Court reversed the judgment in Minister of Safety and Security v F (supra)
(see F v Minister of Safety and Security 2012 (1) SA 536 (CC)), it did so upon the application of the test to
establish vicarious liability on the part of the Minister and without comment upon the SCA’s exposition of
the concept of vicarious liability.

concurrent wrongdoers at common law. Their conduct vis-à-vis the primary
wrongdoers who acted in concert would also be concurrent.18 Since the losses
suffered by the banks would involve several concurrent wrongdoers, the
position of the wrongdoers inter se, may be regulated by the Apportionment
of Damages Act 1956 (the Apportionment Act). This is the point made by
Harms JA in the passage quoted above.19

[28] The parties were requested by the court to address this question
directly. Counsel for the Minister took the view that the Act does not apply
on the basis that the Act seeks to deal with contributory negligence and that
the term ‘fault’ as used in the Act does not contemplate intentional conduct.
Counsel, however, suggested in supplementary heads of argument on this
point that in the event that the trial court found that the maxims ex turpi causa
and in pari delicto did not apply it would be open to it to determine the
liability inter se on the basis of negligence. What was clear from their
submissions was that reliance on the Apportionment Act raises a number of
difficult issues that have not been fully debated before us and do not arise
under the existing pleadings or the amendment.20 It is preferable therefore to
say nothing further under this head.

[29] The proposed pleading is, in its formulation, bad in law and will result
in the pleading being excipiable for the reasons I have given. It follows that

18 See Nedcor Bank t/a Nedbank v Lloyd-Gray Lithographers (Pty) Ltd 2000 (4) SA 915 (SCA).
19 In any proceedings where this was raised attention might have to be given to the implications of the
judgment in Thoroughbred Breeders’ Association of South Africa v Price Waterhouse 2001 (4) SA 551
(SCA); [2001] 4 All SA 161 (SCA).
20 We were referred under this head to Greater Johannesburg Metropolitan Council v Absa Bank t/s
Volkskas Bank 1997 (2) SA 591 (W); Randbond Investments (Pty) Ltd v FSP (Northern Region) (Pty) Ltd
1992 (2) SA 608 (W); and Lloyd Gray Lithographers v Nedcor Bank Ltd t/a Nedbank 1998 (2) SA 667 (W).

the trial court was correct to dismiss the application for leave to amend the
plea. As I have stated, the trial court refused leave to amend also on the
ground that the delay in seeking to amend was inadequately explained and
would give rise to prejudice. That aspect of the case was rendered academic
when the trial was postponed to allow the appeal to be prosecuted.

[30] In the result I make the following order:
The appeal is dismissed with costs, such costs to include those consequent
upon the employment of two counsel.

________________________
G GOOSEN
ACTING JUDGE OF APPEAL

Appearances
For appellant:
M. M. W. Van Zyl SC, with him C.G.V.O. Sevenster
Instructed by:
State Attorney
Bloemfontein

For respondent:
M. A. Kriegler SC, with him N. K Nxumalo
Instructed by:
Norton Rose Fulbright

Webbers Attorneys
Bloemfontein.
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT
OF APPEAL

FROM:
The Registrar, Supreme Court of Appeal
DATE:
8 June 2021
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 Police v Underwriters at Lloyds of London (Case No 1212/2019) [2021]
ZASCA 72 (8 June 2021)

The Supreme Court of Appeal (the SCA) today dismissed an appeal against an order of the
Gauteng Division of the High Court, Pretoria (Mavundla J) (the high court) dismissing an
application to amend a plea filed on behalf of the Minister of Police (the Minister)in an
action brought by the Underwriters at Lloyds of London (the Underwriters).

The action arose from a robbery carried out at the premises of SBV Services (Pty) Ltd
(SBV) in Witbank in April 2014. Two members of the South African Police Services had
conspired with, inter alia, en employee of SBV to carry out the robbery. An amount in
excess of R100 million was stolen. SBV provided cash managing and depository services
to several banks. The cash stolen was owned by these banks. The Underwriters provided
insurance cover to SBV to insure it against an event such as occurred in the robbery. The
Underwriters settled SBV’s insurance claim and took cession of its claims to recover its
losses from the persons responsible. The Underwriters instituted a claim in delict against
the Minister alleging that the Minister was vicariously liable for the unlawful conduct of
the members of the Police Services who had participated in and carried out the robbery.

When the trial commenced before the high court the Minister sought to amend its plea to
introduce a defence based on the common law principle of illegality to the effect that a
court will not countenance illegal activity and will not allow a party who acts illegally or
unlawfully to profit from its own unlawful conduct. The proposed amendment asserted that
since SBV is vicariously liable for the conduct of its employee who participated in the
robbery, SBV was a party to the illegal and unlawful conduct giving rise to its loss. It was,
for this reason, precluded from claiming damages against the Minister. The high court

rejected the argument. It found that the proposed defence is bad in law and does not
introduce a triable issue.

Leave to appeal to the SCA was granted by the high court. The SCA found that the high
court was correct to dismiss the application to amend. It held that the Minister had
fundamentally misconstrued the concept of vicarious liability. Vicarious liability, it held,
does not involve the attribution of the fault of the primary wrongdoer (the employee) to the
employer. The Minister’s reliance on the ‘vicarious liability’ of SBV was misplaced since
the delict was committed against SBV. SBV could not be ‘vicariously liable’ to itself. The
SCA accordingly found that the proposed amendment would render the plea excipiable by
introducing a plea that was bad in law. In the light of this finding it was not necessary to
consider the Minister’s reliance upon the legal maxims giving expression to the principle
of illegality nor to consider the position of SBV as a joint wrongdoer. The appeal was
dismissed with costs.