ConCourt passes on woman’s case

Seeking to sue minister after cop lover shot her

The Constitutional Court yesterday said it did not have jurisdiction to hear the appeal of a woman who was seriously injured by her policeman boyfriend who later killed himself.

According to the constitution‚ the Constitutional Court may decide constitutional matters and any other matter if the court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance.

Elsa Booysen was injured when her boyfriend‚ Johannes Mongo‚ a police reservist who was employed by the South African Police Service‚ shot her in the face in 2013.

On the day of the incident Mongo was dropped off by a police vehicle while on duty to have dinner with Booysen.

At dinner he drew his firearm without warning and shot Booysen in the face and then himself. She survived and he did not.

Booysen sued the minister of police for damages on the basis that he was vicariously liable for Mongo’s conduct.

Vicarious liability refers to an employer being liable for acts by employees.

The police minister was held vicariously liable by the Eastern Cape High Court in Grahamstown in 2015.

However‚ the Supreme Court of Appeal ruled that the minister was not liable.

Booysen had sought to appeal against the Supreme Court of Appeal’s order.

The majority of the Constitutional Court‚ in a judgment written by justice Nonkosi Mhlantla‚ refused Booysen’s leave to appeal yesterday.

Mhlantla said no constitutional issue had been raised in Booysen’s matter to give the court jurisdiction to hear it.

She also said Booysen had not pleaded that her matter concerned an issue of general public importance.

“The case is narrowly framed and brought in the applicant’s own interest,” Mhlantla said.

She said since there was no constitutional issue‚ it was not necessary for the Constitutional Court to assess the merits of the case.

“In the result‚ leave to appeal must be refused‚” she said.

However, in a lone dissenting judgment‚ deputy chief justice Raymond Zondo disagreed with Mhlantla.

Zondo said when Mongo shot Booysen he infringed her right to be free from all forms of violence, which is entrenched in Section 12(1)(c) of the constitution.

“If [Booysen] had sued Mr Mongo for … an order declaring that he had violated her right under Section 12(1)(c) and the matter had come to this court after the high court and the Supreme Court of Appeal‚ nobody could have taken the view that this court had no jurisdiction to adjudicate an appeal in respect of a claim based on a violation of Section 12(1)(c).

“In my view, leave to appeal should be granted‚” Zondo said.