Liability extends beyond personal actions

WHEN a police reservist shot his girlfriend in the face, fired at her mother and then killed himself, it came as a traumatic shock to everyone in the Eastern Cape community of Pearston, where they lived.

Johannes Mongo, 40, died at the scene, but while Elsa Booysen, 30, has survived, she has been left disfigured and suffering constant pain.

This week, though, she had some good news for the first time since that terrible night in March 2013. She has won the vital first part of a court battle for compensation.

After the shooting, Port Elizabeth attorney Lineen Swarts launched a claim against the safety and security minister on her behalf.

The outcome was far from certain, but now Judge Clive Plasket, sitting in the high court in Grahamstown, has found the police liable and they must pay damages, as well as her legal costs.

Booysen told the court she had no idea why Mongo, who had the rank of constable, attacked her. He had come around to her house as usual that evening, dressed in his police uniform and carrying his regulation 9mm Parabellum semiautomatic pistol, issued to him by the shift commander when he started work that afternoon.

He was on night duty and, as usual when he worked nights, he was dropped off for supper at Booysen’s house by an official police vehicle. Afterwards, he was always picked up again by another official vehicle to continue his shift.

On this occasion, Booysen said, Mongo offered to buy everyone soft drinks and seemed quite normal. After supper, however, while the two of them were waiting for the official vehicle, he drew his pistol and, without warning, shot her in the face, fired at her mother and then turned the pistol on himself.

Disfigured

Booysen’s mother sustained an injury to her foot, but Booysen has been left horribly disfigured by the shot, fired at close range.

She will need reconstructive surgery by way of multiple operations and extensive treatment.

Giving evidence, Booysen said she had not foreseen something like this happening. She agreed that the police could well also have been taken by surprise, not knowing that something was wrong.

So, if the police could not be blamed for ignoring clues about Mongo’s state of mind, on what basis could the court find they should pay damages?

Normally someone would only be liable for a damages claim if that person has caused harm to someone else. But there is an exception and this is when, as the judge put it, “an employer who has committed no wrong is held liable for the consequences of his or her employee’s wrongful and unlawful conduct“.

The big question for the judge to decide was therefore whether the attack on Booysen was carried out by Mongo “in the course and scope of his employment”.

If a police officer, on holiday and wearing plain clothes, got drunk and attacked someone with a knife picked up in the street, it could be very hard to prove these were actions carried out “in the course” of the officer’s job.

But what about Mongo’s situation?

In previous cases the courts have found the police liable where an officer has used a police-issue firearm for an unlawful shooting.

Mongo had also used a police weapon; in fact, it was the same pistol issued to him earlier that day.

It was, as in previous similar cases, “the very means by which the crime was committed”, and Judge Plasket said he agreed with earlier decisions in which the courts said that holding police liable in circumstances like this would encourage stricter control over issuing of firearms.

He also considered that Mongo was on duty, was dressed in uniform and had been dropped off for dinner by a police vehicle that would also have picked him up again, after he had eaten. Putting all this together, the judge concluded that the police were therefore liable.