Isaacs v Centre Guards CC trading as Town Centre Security

The plaintiff, Noor Moghamat Isaacs, was shot shortly after midnight on 19 June 2002 at Mitchell's Plain Town Centre and suffered permanent spinal cord damage resulting in complete paraplegia. The firearm was in the hands of Lumaphi Maqazolo, a security guard employed by the defendant, Centre Guards CC trading as Town Centre Security. It was common cause that Maqazolo was on duty as a security guard at the time. The plaintiff's own evidence was that he had gone to the scene of a burglary at a Diskom store intending to steal goods, and fled when Maqazolo approached, whereupon Maqazolo pursued him and fired shots. Maqazolo's version was that he encountered burglars, fired warning shots, pursued the plaintiff, and that during a struggle at the Engen garage the plaintiff tried to seize his firearm and a shot went off accidentally. The defendant further relied on the fact that Maqazolo used his own privately owned firearm, which company rules expressly prohibited guards from possessing or using while on duty.

• Whether Maqazolo committed a delict against the plaintiff by unlawfully or negligently causing the shooting.
• Whether the defendant rebutted the prima facie unlawfulness arising from the infringement of the plaintiff's bodily integrity.
• Whether Maqazolo was negligent even on his own version that the firearm discharged accidentally during a scuffle.
• Whether Maqazolo was acting within the course and scope of his employment when the plaintiff was shot.
• Whether the employer could avoid vicarious liability because the employee used a privately owned firearm in breach of an express workplace prohibition.

The court declared that the defendant is liable to the plaintiff for such damages as the plaintiff may prove he suffered as a result of the shooting incident, and ordered the defendant to pay the plaintiff's costs relating to the merits. Quantum stood over for later determination.

An employer is vicariously liable for a delict committed by an employee where the employee, though acting improperly and in breach of workplace rules, was nevertheless still subjectively and objectively engaged in the affairs or business of the employer. A prohibition against possessing or using a firearm while on duty, in the circumstances of this case, regulated the manner of performing security work and did not remove the employee's conduct from the course and scope of employment. Further, a security guard who pursues and apprehends a suspect while holding a loaded firearm with the safety catch disengaged, and becomes involved in a scuffle without securing the weapon, acts negligently if the firearm discharges and injures the suspect.

The court observed generally that the line between acts within and outside the course and scope of employment is difficult to draw with certainty, echoing Feldman v Mall. It also used an analogy of a driver prohibited from speeding or drinking while on duty to illustrate that breach of such rules does not necessarily place the employee outside the scope of employment. These explanatory remarks supported the reasoning but were not themselves necessary beyond the facts found.

The case is significant for South African delict and vicarious liability law because it confirms that an employer may be held vicariously liable even where an employee disobeys an express instruction, provided the employee was still engaged in the employer's business. It illustrates the distinction between a prohibition that limits the sphere of employment and one that merely regulates conduct within that sphere. It also confirms that an 'accidental' discharge of a firearm during the performance of security duties may still found liability on the basis of negligence.