ConCourt refuses to hear appeal of woman shot by reservist policeman

27 June 2018 - 16:31 By Ernest Mabuza
Image: Gallo Images/Thinkstock

The Constitutional Court on Wednesday said it did not have jurisdiction to hear an 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.

The case is narrowly framed and brought in the applicant’s own interest.

In this case‚ Elsa Booysen was seriously injured when her boyfriend‚ Johannes Mongo‚ an on duty police reservist who was at the time 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‚ with whom he had an intimate relationship.

He ate dinner and without warning drew his firearm‚ shooting Booysen in the face‚ then himself. She survived and he did not.

Booysen sued the minister of police for damages arising out of the incident on the basis that he was vicariously liable for Mongo’s wrongful conduct. Vicarious liability refers to a situation where an employer is liable for acts by employees.

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

However‚ the Supreme Court of Appeal ruled that the minister was not liable for Mongo’s conduct.

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 on Wednesday.

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.”

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‚” Mhlantla said.

Mhlantla said the court's refusal to hear the matter should not be perceived to detract from the court's grave concern about the abuse of official firearms by police officers.

However in a lone dissenting judgment‚ Deputy Chief Justice Raymond Zondo disagreed with Mhlantla.

“In my view‚ this matter does raise a constitutional issue and this Court has jurisdiction. Indeed‚ in my view‚ leave to appeal should also be granted‚” Zondo said.

Zondo said when Mongo shot and injured Booysen for no valid reason‚ he infringed her right to be free from all forms of violence which is entrenched in section 12(1)(c) of the Constitution.

“If (Booysens) 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)‚” Zondo said.