REPORTABLE
Case No: 413/97
IN THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
In the matter between:
BENNETT MADALA MKHATSWA
APPELLANT
and
MINISTER OF DEFENCE
RESPONDENT
CORAM:
SMALBERGER, VIVIER, HOWIE, STREICHER JJA and
MELUNSKY AJA
DATE OF HEARING:
19 NOVEMBER 1999
DELIVERY DATE:
29 NOVEMBER 1999
Delict - vicarious liability - negligence not established on the facts for
alleged omissions by those in control of military base or acts of sentries
on duty - for a fuller summary see para 39.
_________________________________________________________
JUDGMENT
_________________________________________________________
. . . SMALBERGER JA

SMALBERGER JA:
[1] It is common cause that in the early hours of 25 May 1992 the
appellant was forcibly removed from his home in Tamboville by
members of the then South African Defence Force (“the Defence Force”)
who were off duty at the time.  He was taken to a nearby road where he
was severely assaulted.  In the course of the assault he was struck in the
face with a rifle butt resulting in the loss of his right eye.
[2] Arising from this incident the appellant (as plaintiff) instituted
action against the respondent (as defendant) in the Witwatersrand Local
Division for damages in the sum of R186 050,00.  (For convenience’ sake
I shall continue to refer to the parties as they were known at the trial.)
The matter came before Gautschi AJ.  With leave of the court the trial
proceeded on the issue of liability only.  At its conclusion the learned

acting judge found for the plaintiff, holding that the defendant was liable
for any damages suffered by him as a result of the assault.
[3] The defendant sought and was granted leave to appeal to the full
court of the Witwatersrand Local Division.  The appeal succeeded and the
trial court’s order was altered to one dismissing the plaintiff’s claim with
costs.  The judgment is reported - see Minister of Defence v Mkhatswa
[1997] 3 All SA 376 (W).  The plaintiff was subsequently granted special
leave to appeal to this Court.
[4] In May 1992 21 SA Infantry Battalion was stationed at Lenz
military base on the West Rand.  Its ranks included D company, a platoon
of troops mounted on horseback and motor cycles, and A company, a
platoon of guards.  The members of D company were all permanent force
members with experience ranging from four to seven years.  Many of

them were married with children and resided in established areas.
[5] At that time the Defence Force’s Group 16 commanded a certain
geographical area on the East Rand.  Incorporated within its area were,
inter alia, the township of Wattville, the adjoining informal settlement of
Tamboville and a military base known as “Apex”.  Tamboville was
situated approximately five kilometres from Apex base as the crow flies.
[6] Because of prevailing discontent in certain communities, some
areas under the command of Group 16 had been declared unrest areas.
Wattville and Tamboville were not included amongst these.  Group 16 did
not have soldiers at its disposal to deploy in these unrest areas.  A and D
companies were drafted for this purpose.  The function of D company
was to patrol the affected areas on horseback and motor cycles in
collaboration with members of the South African Police.  Patrols were

confined to daytime because of the heightened danger associated with
night patrols.
[7] During their deployment in these areas A and D companies
(together comprising approximately 70 soldiers) were stationed and
billeted at Apex base.  It was a small base and provided the only
accommodation available for soldiers operating within the area of Group
16.  The base was used infrequently for operational purposes and served
primarily as the headquarters of a commando.
[8] The members of D company were initially due to complete their
operational duties on Friday 22 May 1992 and thereafter to return to Lenz
base.  However, because of a further need for their services over the
weekend, their spell of duty was extended to the Sunday.  In order to
pacify the disgruntled members of D company, and partly to compensate

them for the delayed return to their base and, more significantly, their
homes, it was arranged that certain allowances due to them would be paid
on the Saturday rather than only after their return.  This was duly done.
[9] D company returned to Apex base on Sunday 24 May 1992 at
approximately 16h00 upon completion of its patrol duties.  The rifles
which had been issued to its members were returned and locked away.
The only soldiers at the base left in possession of rifles were the six
guards who were due to perform rotational guard duty that night.
[10] After having changed and eaten, seventeen members of D company
left Apex base in different groups.  There were no canteen facilities
available at Apex base, the canteen having been closed temporarily
because of theft.  They proceeded on foot to a shebeen in Wattville, not
far from its border with Tamboville.  Some stayed there longer than

others.  When the last of them (a group of nine) departed they were
somewhat intoxicated.  They decided to take a short-cut to Apex base
through Tamboville.  While on their way they were confronted by
residents of Tamboville patrolling the area.  An altercation ensued, ending
up in a fight.  The soldiers came off second-best and scattered and fled
the scene.
[11] There is uncertainty concerning the precise events that occurred
subsequently.  What has been established, however, is that rifleman
Lawerlot returned to Apex base where he unlawfully took possession of
a Samil 50 military truck (“the Samil 50") and a number of army issue
rifles.  He then went back to Tamboville apparently bent on revenge.  En
route he picked up some of his fellow soldiers who had been involved
in the prior clash.  In the course of the ensuing foray several innocent

persons were dragged from their homes and the assault upon the plaintiff
took place.  None of these persons had been involved in, or been
connected with, the earlier confrontation.
[12] On the day of the assault D company’s commander, Captain
Rademeyer, was on leave.  His second in command was Second
Lieutenant Botha.  He was only 18 years of age.  Because of his lack of
experience, Warrant Officer Scheepers was appointed acting company
commander in Rademeyer’s absence.  Scheepers left Apex base at
approximately 19:00, leaving Botha in charge during the period when the
relevant events occurred.
[13] The absence at the time of canteen facilities, an important feature
of army life, has already been mentioned.  It is common cause that the
perimeter fence of Apex base was in a dilapidated state making it possible

for soldiers to leave and return to the base on foot without having to go
past the sentries at the main gate.  Colonel de Bruin, the commanding
officer of Group 16, conceded in evidence that at the relevant time there
were deficiencies in the command and control structures at the base.
According to Botha “things were very lax at Apex base”.  No clear
guidelines in respect of discipline and leave were issued to members of
D company in relation to their stay there.  This led to confusion with
regard to whether they were entitled to leave the base after going off duty.
As permanent force members they could do so at Lenz base.  They were
apparently under the impression that this situation also applied at Apex
base.  Scheepers was of the same view.  So too was Colonel Scholtz, who
presided over the later Defence Force inquiry into the events of the night
in question.  De Bruin, Botha and Lieutenant-Colonel Smit, the staff

officer of Group 16, thought differently.  They considered the members
of D company to be on stand-by and as such not entitled to leave the base
without special permission.  However, it is clear that nothing was done
to make this known to them.
[14] It is apparent from the evidence that the state of affairs that existed
at Apex base at the time as to administration and discipline left much to
be desired.  However, whatever valid criticism this may give rise to must
not be allowed to obscure the true issues on appeal.
[15] The Standing Orders for Apex base (available in the record only
in Afrikaans) provided, inter alia, that “geen militêre voertuig sal die
basis verlaat sonder ‘n geldige ritmagtiging nie” and “geen persoon sal die
basis binne gaan of verlaat anders as deur voorgeskrewe toegangsweë
nie”.  Provision is also made in the Standing Orders for the proper

supervision and control of weapons.
[16] According to the evidence, the sentry system is designed to protect
the base from outside incursions rather than to keep soldiers in.
Nonetheless the sentries would not normally permit a soldier to leave the
base without the necessary authority, where such is required.  Sentries are
also there to try to ensure that the unauthorised removal of military
vehicles and firearms does not take place.
[17] The plaintiff seeks to hold the defendant vicariously liable for (1)
the alleged wrongful omissions of those in command of Apex base and
(2) negligence on the part of the sentries while acting in the course and
scope of their employment.  I shall deal with each of these in turn.  I
should point out that the second issue appears to have received scant
attention both in the trial court (where it was not relied upon to found

liability) and the court a quo (where it was not alluded to at all in the
judgment of the court as a possible basis for liability on the part of the
defendant).  On appeal before us it was dealt with by the plaintiff’s
counsel very much as a subsidiary issue - almost as an afterthought.
[18] Liability for the alleged wrongful omissions is predicated on the
principles laid down in Minister van Polisie v Ewels 1975(3) SA 590 (A).
However, before those in command of Apex base (and the defendant
vicariously) can be held responsible for any wrongful omission, it must
be established that they were negligent in failing to guard against and
prevent reasonably foreseeable harm to the plaintiff.  The question of
negligence (i.e. the failure to comply with the standard of conduct of a
reasonable person) is the logical starting point to any enquiry into the
defendant’s liability, for without proof of negligence the plaintiff cannot

succeed in his action and considerations of wrongfulness and remoteness
(legal causation) will not arise.
[19] Subject to the qualification to be mentioned later, in determining
the issue of negligence I shall apply, as urged upon us by counsel for the
plaintiff, the well-known and widely approved test for negligence
enunciated by Holmes JA in Kruger v Coetzee 1966(2) SA 428 (A) at 430
E - F rather than any later adaptation thereof (see Mukheiber v Raath and
Another 1999(3) SA 1065 (SCA) at 1077 E - F which (and I say this
despite the fact that I was a party thereto) might give rise to some
uncertainty as to what was sought to be conveyed - see in this regard the
remarks of Scott JA in para 21 of the hitherto unreported majority
judgment in the matter of Sea Harvest Corporation (Pty) Ltd and
Another v Duncan Dock Cold Storage (Pty) Ltd and Another (the “Sea

Harvest case”) delivered on   26 November 1999).
[20] The test referred to in Kruger v Coetzee reads:
“For the purposes of liability culpa arises if-
(a)
a diligens paterfamilias in the position of the defendant-
(i)
would foresee the reasonable possibility of his
conduct injuring another in his person or property
and causing him patrimonial loss; and
(ii)
would take reasonable steps to guard against such
occurrence; and
(b)
the defendant failed to take such steps.”
[21] It is only if the requirement in (a)(i) is established that the need
arises to consider whether a reasonable man in the position of those in
command of Apex base would have guarded against any foreseeable
occurrence and failed to do so.
[22] The qualification to which I have referred is to be found in para
[22] of the majority judgment in the Sea Harvest case where Scott JA
remarked:

“It is probably so that there can be no universally applicable
formula which will prove to be appropriate in every case.”
He went on to state:
“Notwithstanding the wide nature of the inquiry postulated
in paragraph (a)(i) of Holmes JA’s formula - and which has
earned the tag of the absolute or abstract theory of
negligence - this court has both prior and subsequent to the
decision in Kruger v Coetzee acknowledged the need for
various limitations to the broadness of the inquiry where the
circumstances have so demanded.  For example, it has been
recognized that while the precise or exact manner in which
the harm occurs need not be foreseeable, the general
manner of its occurrence must indeed be reasonably
foreseeable.  (See generally: Kruger v Van der Merwe and
Another 1966(2) SA 266 (A), Minister van Polisie en
Binnelandse Sake v Van Aswegen 1974(2) SA 101 (A) at 108
E - F and also Robinson v Roseman 1964(1) SA 710 (T) at
715 G - H.  For examples of where the manner in which the
harm occurred was held not to have been reasonably
foorseeable, see S v Bochris Investments (Pty) Ltd and
Another 1988(1) SA 861 (A); Stratton v Spoornet 1994(1)
SA 803 (T).)”
Later in the same paragraph, in which reference is made to the need for

a degree of flexibility, he continued:
“Too rigid an approach in borderline cases could result in
attributing culpability to conduct which has sometimes been
called negligence ‘in the air’.”
He ultimately concluded:
“Inevitably the answer will only emerge from a close
consideration of the facts of each case and ultimately will
have to be determined by judicial judgment.”
[21] The last quotation is a salutary reminder of the fact that whether or
not conduct constitutes negligence ultimately depends upon a realistic and
sensible judicial approach to all the relevant facts and circumstances that
bear on the matter at hand.  What also needs to be emphasized is that
what is required to satisfy any test for negligence is foresight of the
reasonable possibility of harm.  Foresight of a mere possibility of harm
will not suffice.

[22] Reverting to the facts.  The members of D company completed
their stint of duty on the Sunday afternoon.  They were due to return to
Lenz base the following day.  They were probably still somewhat
annoyed at having to stay at Apex base longer than had been anticipated.
Their allowances had been paid to them the previous day.  No canteen
facilities were available at the base.  The temptation to seek liquor
elsewhere was great.  They had been given no specific instructions to
remain at the base.  It was a known fact that the inhabitants of the
townships were generally not well-disposed towards soldiers.  Given
these circumstances it was reasonably foreseeable on the part of those in
command of Apex base that members of D company might leave the base
in search of liquor in a nearby township.  Once there the danger existed
of their identity being discovered, particularly if they became inebriated.

The same would hold true if they were confronted on their way back
through Tamboville, which is in fact what happened.  The reasonable
possibility of a violent altercation ensuing and harm being caused to
someone in the process, or in the course of any immediate retaliation, was
in my view also reasonably foreseeable by those in command.
[23] However, in the particular circumstances of this case the question
of culpability must ultimately be determined not in relation to the
foreseeability of the events just described, but with regard to whether
those in command at Apex base could reasonably have foreseen that
some substantial time thereafter one of the soldiers (Lawerlot) would
return to the base and wrongfully appropriate the Samil 50 and a number
of  rifles in order to mount, with the aid of colleagues, what amounted to
a revenge attack involving innocent inhabitants of Tamboville rather than

those with whom they had previously clashed.  The members of D
company were disciplined and experienced soldiers - in some respects
(according to the evidence) the cream of the infantry - from whom
conduct of this kind could not reasonably be expected.  There was no
evidence of any previous incidents at Apex base involving the
misappropriation or misuse of vehicles and particularly rifles which could
have served as a warning to those in command.  Furthermore, there were
structures in place in the form of sentries to try to prevent the
unauthorised removal of vehicles and rifles from the base.  In my view
the reasonable possibility of these events occurring and harm ensuing to
the plaintiff would not have been foreseen by a reasonable person in the
position of those in command.  To have foreseen what happened would
have required prophetic foresight, which is not an attribute of the

reasonable person.  (See S v Bochris Investments (Pty) Ltd and Another
1988(1) SA 861 (A) at 867 A.)  Consequently there can be no fault on
their part for not taking steps to prevent what was not reasonably
foreseeable.
[24] I understood counsel for the appellant ultimately to concede this
to be so.  He contended, however, that those in command could
reasonably have foreseen that rifles might unlawfully be removed from
Apex base and be used to cause harm; they should have guarded against
this happening, but failed to do so.  Such failure was ascribed to laxity of
control at the base, laxity which it was suggested permeated the conduct
of everyone in command or on duty.  The fact that the Standing Orders
were designed to forestall the unlawful removal of firearms from the
base, so it was argued, was indicative of foresight of the reasonable

possibility of this happening.
[25] Leaving aside any question of causation, an inevitable stumbling-
block in the plaintiff’s pursuit of success, the facts and circumstances do
not justify the finding of reasonable foresight for which plaintiff
contends.  Whatever laxity there may have been did not extend to the
control of firearms.  Apart from those issued to the persons on guard
duty, all rifles had been securely locked away.  The Standing Orders
relating to the care of firearms were designed to prevent the negligent use
or control of firearms to forestall their landing in the wrong hands rather
than their unlawful appropriation and misuse by the soldiers themselves.
As pointed out previously, the members of D company were disciplined
and experienced soldiers.  There was no evidence of any previous
misappropriation of rifles at Apex base, and no reason to believe that any

members of D company would misappropriate rifles to serve their own
ends.  There were sentries on duty whose task it was, inter alia, to
ensure, as far as it could be expected of them to do so, that firearms were
not removed from the base without the necessary authority.  In the
circumstances a reasonable man in the position of those in command
would not have foreseen the danger of rifles being removed in the
manner in which they were as real enough to have warranted additional
precautionary measures to prevent that happening.
[26] In the result the plaintiff failed to establish negligence on the part
of the command structure at Apex base in relation to the harm which he
suffered.  This brings me to the question whether the defendant can be
held vicariously liable for any negligent conduct on the part of the
sentries who had been assigned to guard duty.

[27] The crux of the plaintiff’s case in this regard is to be found in the
amendment to his particulars of claim which was granted during the
course of the hearing.  It alleges negligence arising from the fact that
“the defendant’s sentries, acting in the course and scope of
their employment, failed to prevent the unauthorised
departure of troops, a military vehicle and firearms from
Apex base.”
[28] The allegation appears to be confined to the occasion when
Lawerlot left the base in the Samil 50.  The evidence indicates that the
members of D company who had left the base earlier may not have used
the main gate but may simply have crossed over the dilapidated perimeter
fence at a convenient spot.  If that is so, the sentries at the gate would
probably have been unaware of their departure.  But even if they had
passed through the main gate, as matters stood (there being no specific
instructions to the contrary) the sentries had no reason to believe that they

were not entitled to go out.  They could therefore not be said to have
acted unreasonably in letting them through.
[29] It is not alleged, nor is there any direct evidence, that the sentries,
with knowledge or foresight of what he was about, co-operated with
Lawerlot in allowing him to leave with the Samil 50 and a number of
rifles.  The reason for this is obvious: if they had so co-operated they
would have been acting contrary to their duties and outside the course
and scope of their employment by associating themselves with Lawerlot’s
“frolic of his own”.  In those circumstances the defendant could not be
held legally liable for their conduct.  In any event, the defendant was
never called upon to meet such a case.
[30] In order to determine whether the sentries failed to act reasonably
it is necessary to attempt to establish the circumstances surrounding

Lawerlot’s departure in the Samil 50.  One’s task in this regard is made
difficult by the fact that none of the sentries was called as a witness.
[31] Lawerlot testified that he left alone in the Samil 50. He further
denied that he took any rifles with him.  He was found, rightly so, to be
an untruthful and unsatisfactory witness.  It is not disputed that the
soldiers who assaulted the plaintiff were members of D company.
Several rifles (the exact number is not known) were seen in their
possession.  Despite Lawerlot’s denial, only he could have been
responsible for taking the rifles out of the base in the Samil 50.
[32] Less certain is whether Lawerlot left the base alone or was
accompanied by other soldiers.  When Lawerlot took the Samil 50 the
members of D company who had been involved in the earlier altercation
had probably not yet returned.  One of the reasons for Lawerlot taking it

was to go and pick them up.  Lawerlot removed the Samil 50
surreptitiously from outside the hut where Botha was asleep.  He could
not have done so, and have started it, without assistance.  Such assistance
must have been forthcoming from persons who had remained at the base
and not gone out earlier.  It does not necessarily follow that those who
assisted Lawerlot, or some of them, accompanied him when he left the
base.  What is significant in this regard, however, is that some of the
soldiers at the scene where the plaintiff was assaulted were wearing items
of military clothing.  Yet the soldiers who had earlier left the base were
all dressed in civilian clothes.  Had those picked up by Lawerlot on his
way to Tamboville been the only other persons involved in the assault
upon the plaintiff their clothes would not have matched the description
given by the witnesses of what some of the assailants were wearing.  All

of this suggests that Lawerlot probably left the base accompanied by
some soldiers who had not been involved in the earlier trouble.
[33] There were six sentries assigned to guard duty that night.  Two
were on duty at a time while the other four presumably either slept or
rested in the guardroom while awaiting their turn of duty.  The sentries
were the only persons to whom rifles - six in all - had been issued.  All
other rifles at the base were safely locked away.  The rifle used to assault
the plaintiff, and any other rifles at the scene, could only have come from
those issued to the sentries.  The question is, how did this happen?
[34] One explanation, and perhaps the most plausible one, is that the
sentries voluntarily co-operated with Lawerlot by handing over their rifles
to him - at least those not on guard duty at the time, for the latter are less
likely to have relinquished their weapons.  If this were so, it is likely that

the two on guard were aware of what had happened and associated
themselves with the events.  To the extent that some or all of the sentries
associated themselves with what Lawerlot intended doing, the defendant,
as previously pointed out, cannot be held liable for their conduct.
[35] Another conceivable sequence of events is that Lawerlot managed
to obtain possession of the rifles of the off-duty sentries by stealth, and
that he left the base without the sentries at the gate suspecting or knowing
that there were rifles in the Samil 50.  The vehicle was leaving the base,
not entering it.  Lawerlot would have been known to the sentries as one
of the regular drivers.  They were under no duty to search the vehicle for
rifles.  In those circumstances they would have been guilty of no more
than a breach of the Standing Orders in permitting the Samil 50 to leave
the base without the necessary authority.  Unless they knew, or could

reasonably have suspected, that there were rifles in the vehicle, they could
not have foreseen the reasonable possibility of their conduct causing
harm to anyone.
[36] No doubt one of the reasons why there were measures in place to
prevent the unauthorised removal of firearms from the base was the
danger of their misuse causing injury to someone.  If the sentries were
aware of the rifles in the Samil 50 (and were not co-operating with
Lawerlot) they would have been under a duty to prevent him from
leaving with them.  How they could have accomplished this is difficult to
imagine.  Judging by the lengths to which he had gone, Lawerlot was
determined to leave with the rifles come what may.  Had he defied the
sentries if they tried to stop him, and it seems likely that he would have
done so, they could have raised the alarm, but it is unlikely that anyone

could have prevented the subsequent events from happening.  The
suggestion that the sentries could have shot Lawerlot is too drastic an
alternative to be considered realistic in the circumstances.
[37] I am mindful of the fact that one should not indulge in
impermissible speculation.  But it is not beyond the bounds of probability
that when Lawerlot left the camp (whether alone or accompanied by
others) he did so simply under the guise of going to pick up his
companions because they had run into trouble.  In those circumstances
it could hardly be said that the sentries who let him leave, accepting that
they had no knowledge of the rifles, acted unreasonably - at least not in
a respect causally related to the harm suffered by the plaintiff.
[38] I appreciate that it would have been unrealistic to have expected the
plaintiff to have called the sentries as witnesses.  But equally there was no

obligation on the defendant to do so having regard to the fact that the
onus lay on the plaintiff.  Bearing in mind the many imponderables, no
adverse inference of culpability can arise from the defendant’s failure to
call them as witnesses, assuming their availability.
[39] To sum up the effect of the aforegoing.  The plaintiff had an
obvious cause of action against the actual wrongdoers i.e. those soldiers
who were directly responsible for his injuries.  He chose not to proceed
against them personally.  Whether this was because he was unable to
establish their identity, or unwilling to proceed against them, we do not
know.  Nor did he seek, correctly so, to hold the defendant, as their
employer, vicariously liable for their conduct.  This is because at the
relevant time the soldiers were acting outside the course and scope of
their employment i.e. they were not about the business of the Defence

Force when they inflicted injury on the plaintiff.  What the plaintiff
sought to do was to hold the Defence Force liable for the failure of those
in command of Apex base to guard against harm of the kind suffered by
him.  He failed, however, to establish the necessary foresight of the
reasonable possibility of such harm on their part.  This was a pre-
requisite for culpability on their part and liability in respect thereof on the
part of the defendant.  Nor was the plaintiff able to establish vicarious
liability on the part of the defendant for the conduct of the sentries in not
preventing the Samil 50 carrying rifles from leaving the base - either
because it was not proved that they acted within the course and scope of
their employment at the time or, for want of reasonable foresight of their
conduct causing harm to the plaintiff, they had not been negligent in
relation to the damage suffered by him.

[40] In the result the plaintiff has failed to establish legal liability on the
part of the defendant for his injuries and any damage he may have
suffered.  The result is socially unfortunate and morally unsatisfactory.
However, one cannot allow one’s natural sympathy for a litigant to
subvert the proper application of accepted legal principle.  The court a
quo expressed the hope that “this case comes to the attention of those
responsible in the [Defence Force] for consideration of ex gratia
payments”.  I would echo that sentiment.
[41] The appeal is dismissed with costs.
____________________
J W SMALBERGER
JUDGE OF APPEAL
VIVIER JA
)
HOWIE JA
)
)concur
STREICHER JA
)

MELUNSKY AJA )