About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2021
>>
[2021] ZAWCHC 224
|
|
Ralarala obo Ralarala v Minister of Police (6948/2018) [2021] ZAWCHC 224; 2022 (1) SACR 393 (WCC) (4 November 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: 6948/2018
In
the matter between:
FUNDISWA
FIONA RALARALA obo SONWABILE RALARALA
Plaintiff
and
THE
MINISTER OF
POLICE
Defendant
JUDGMENT
DE WET, AJ
INTRODUCTION
:
[1]
Plaintiff claims damages on behalf of her son
Sonwabile Ralarala (‘Sonwabile’) in delict from defendant
as a consequence
of him being shot by a member of the South African
Police Service (‘SAPS’) with a police issue firearm which
resulted
in his permanent paralysis.
[2]
The parties agreed to separate the issue of
merits and quantum and at the commencement of the hearing an order
was granted in terms
of rule 33(4).
[3]
It is plaintiff’s pleaded case that by
virtue of the provisions of the Constitution of the Republic of South
Africa, Act 108
of 1996 (“the Constitution”), defendant
and its employees owed Sonwabile a duty of care and were obliged to
protect
his dignity and life, his freedom and security of person and
his right to bodily and psychological integrity. It was further
pleaded that defendant’s employees owed Sonwabile a duty of
care by virtue of the South African Police Services Act 68 of
1998
and the issuing of a firearm by defendant to the particular member
was in breach of such duty as he was not proficient in
the use of
such firearm; he had not met the requirements of Standing Order 48
and did not have the necessary permission to be in
possession of a
police issue firearm.
[4]
It is defendant’s pleaded case that the
particular member was granted permission by him after an application
by the member
to possess the firearm in question whilst off duty as
from 14 April 2017 (sic), defendant did not owe Sonwabile a duty of
care
and further that the member was not acting in the course and
scope of his employment with defendant when he shot Sonwabile and
another member of the public.
[5]
Accordingly, the issue for determination is
whether defendant was negligent in issuing a firearm to the
particular member of the
SAPS responsible for shooting and injuring
Sonwabile whether on the basis of direct liability or vicarious
liability.
[6]
By virtue of the formal admissions which were
formulated and placed on record by agreement between the parties, the
proceedings
were significantly curtailed. The evidence which
was led by plaintiff was also mostly uncontested. A brief
summary
of the facts will therefore suffice:
6.1.
Constable Mandla Mahlanza (“Mahlanza”), was employed by
the SAPS on 14 January 2008.
6.2
On the evening of 22 July 2017 and just after 20h00 there was an
altercation between Mahlanza
and a Mr Mathole, which culminated in
Mahlanza drawing his firearm in the presence of many innocent
bystanders outside a tavern
known as Mtotywa’s tavern in
Khayalitsha, and shooting 6 to 7 shots in Mr Mathole’s general
direction.
6.3
The firearm (a Z88 pistol with serial number Q061689) was issued to
Mahlanza pursuant to
a so-called SAPS 543, being a temporary permit
to possess an official firearm for the period 14 July 2017 to 27 July
2017 (a 13-day
period).
[1]
The document/permit did not contain a serial number and was only
signed by Warrant Officer Stemmet who held the rank of Sergeant
at
the time. Mahlanza was also issued with 30 rounds of
ammunition.
6.4
Mr Mathole was shot in the neck and knee, but luckily only sustained
flesh wounds.
6.5
At the time of the incident Mahlanza was off-duty, dressed in
civilian clothes, drinking
with friends and according to Mr Mathole
he was drunk. He had his police issue firearm with him and had
threatened to shoot Mr
Mathole a bit earlier on the same evening.
6.6
At the time of the shooting incident Sonwabile, who was only 15 years
old at the time, was
walking home after he had his hair cut. He
stopped to buy meat at a stand opposite the aforesaid tavern and saw
Mahlanza, whom
he knew was a police officer living in the area,
emerge from the tavern, drawing a firearm which he pointed in
Sonwabile’s
general direction and fired a shot. Sonwabile was
struck in the neck and remembers falling to the ground where after he
lost consciousness.
6.7
As a result of the shot, Sonwabile is now wheel-chair bound and
permanently disabled.
6.8
As a result of Mahlanza shooting Sonwabile and Mr Mathole, he was
arrested on 23 July 2017
on two counts of attempted murder under case
number Khayelitsha CAS 688/07/2017. In his warning statement
dated 24 July 2017
he stated under oath as follows “
I acted
in self-defence
(sic)
as my life was in danger
”.
6.9
The criminal proceedings were ultimately struck from the roll on 13
June 2018 after many
appearances and as a result of witnesses not
being at Court.
6.10
Mahlanza was subjected to a disciplinary hearing by the SAPS which
commenced on 5 June 2018 and was
only finalised on 9 December 2019.
He was found guilty of recklessly discharging his service issue
firearm and more particularly
contravention of sections 120(3)(b) and
(c) and section 120 (6)(a) of the Firearms Control Act. It was
further found that he conducted
himself in an improper, disgraceful
and unacceptable manner. He was dismissed from the SAPS on 9 December
2019. It would appear
from the documents made available during the
trial that he still reported for duty in the interim and was again
issued with a firearm
and ammunition shortly after the incident.
[2]
6.11
At the disciplinary hearing, Mahlanza, under oath and despite his
witness statement on 24 July 2017,
denied firing any shot on the
evening of 22 July 2017 and stated that he merely tried to defuse a
situation involving Mr Mathole.
6.12
For purposes of this matter, defendant on 23 November 2020 formally
admitted that Mahlanza fired a
shot on 22 July 2017 using his police
issue firearm resulting in Sonwabile being struck by the bullet.
6.13
It was further admitted that Mahlanza was booked off from duty on the
evening of 19 July 2017 and was
scheduled to report back for duty on
23 July 2021 at Kensington SAPS, where he was stationed at the time.
6.14
At the time of the incident Mahlanza had a track record in respect of
maintenance shooting which revealed
that for a number of years
preceding the shooting he had regularly failed his maintenance
shooting in that:
6.14.1 On 8
May 2015 he failed his maintenance shooting with a handgun at Faure
Provincial Training facility, Western Cape.
6.14.2 On 9
June 2015 he failed his maintenance shooting with a handgun at Faure
Provincial Training facility, Western Cape.
6.14.3 On 28
September 2015 he failed his maintenance shooting with a handgun at
Faure Provincial Training facility, Western
Cape.
6.14.4 On 14
April 2016 he failed his maintenance shooting with a handgun at Faure
Provincial Training facility, Western Cape.
6.14.5 On 24
March 2017 he failed his maintenance shooting with a handgun at Faure
Provincial Training facility, Western Cape.
6.14.6 On 8
May 2017 he failed his maintenance shooting with a handgun at Faure
Provincial Training facility, Western Cape.
6.15
Shortly prior to the shooting, on 27 June 2017, he had passed a
remedial maintenance shooting course.
6.16
After the incident he continued to prove himself incompetent with a
firearm when tested. By the
time the disciplinary proceedings
were heard he had again failed his maintenance shooting. In November
2019 he yet again failed
his maintenance shooting with a handgun at
Faure Provincial Training Facility, Western Cape
6.17
Mahlanza’s disciplinary record showed that:
6.17.1 On 11
April 2011 he faced a charge of misconduct in terms of regulation
20(a) in that he allegedly caused damage and
loss to State property
related to reckless and negligent driving of a police vehicle.
He received a final written warning
on 28 March 2011 which remained
valid for six months.
6.17.2 In
regard to a complaint on 9 April 2013 of a contravention of
regulation 20(2) it was alleged that Mahlanza had committed
a common
law or statutory offence in regard to the possession of prohibited
substances, namely dagga and ecstasy. Defendant’s
response was that this complaint did not proceed beyond the enquiry
stage.
6.17.3 A
complaint on 8 October 2014 was that Mahlanza had contravened
regulation 20 of the disciplinary regulations in that
he had
allegedly conducted himself in an improper, disgraceful and
unacceptable manner and had committed a common law or a statutory
offence in that it was alleged that he had pushed, struck a
complainant in the face and had thrown the complainant in the back
of
a police van. Defendant’s response was that the complaint
did not proceed beyond the enquiry stage.
6.17.4 A
complaint on 1 March 2015 was a charge of contravening regulation 20
of SAPS disciplinary regulations it being alleged
that Mahlanza had
conducted himself in an improper, disgraceful and unacceptable manner
and had committed a common law or statutory
offence, the allegation
being that he had assaulted a complainant and her son by pushing and
striking them. Defendant’s
response was that this
complaint did not proceed beyond the enquiry stage.
6.17.5 A
complaint on 27 June 2015 was that he failed to comply with
regulation 20 in that he allegedly failed to hand in
a medical
certificate within five days after his first day of absence.
Defendant admitted that it applied remedial steps
and provided
counselling to him with reference to how medical certificates should
be dealt with in the future.
6.17.6 A
complaint on 12 July 2016 was in regard to an allegation of
misconduct in terms of regulation 8(1) relating to police
exhibits.
Defendant’s response was that the matter did not proceed beyond
the enquiry stage.
6.17.7 A
complaint on 6 June 2017 was a contravention of regulation 5 in that
he allegedly performed an act with the intention
not to comply with
his duties or responsibilities in regard to registering a false
complaint and false entries in the occurrence
book. Defendant
admitted that Mahlanza was found to have contravened the regulation
for which he was issued a final written
warning.
6.17.8 A
complaint on 4 November 2017 was a contravention of regulation
5(3)(k) of SAPS disciplinary regulations 2016.
Defendant
admitted that Mahlanza was found to have absented himself without
permission and was given a written warning.
6.17.9 A
complaint on 9 June 2019 was a charge of conducting himself in an
improper, disgraceful and unacceptable manner when
he was arrested at
a roadblock for allegedly driving under the influence of alcohol with
a blood alcohol level of 0.81g/100ml.
Defendant admitted to
being aware of the incident but bears no knowledge of the outcome of
the charge against Mahlanza.
[7]
It was argued on behalf of plaintiff that the
aforesaid common cause facts as set out above establishes that
Mahlanza had a track
record of being consistently incompetent, over a
number of years, in the use of a handgun and was either not lawfully
issued with
a firearm alternatively, was issued with a firearm in
circumstances where he was not competent. It was further argued that
Mahlanza
was not a fit and proper person to issue a firearm to.
LEGAL
FRAMEWORK:
[8]
In the background section of “The Firearm
Permit System and Firearm Training” issued by the SAPS through
National Instruction
4 of 2016 (hereinafter referred to as “the
National Instruction”) it is pointed out to members, quoting
from the decision
in
Shozi and others v
Minister of Safety and Security and another
[2016]
JOL 34975
(KZD)
“
that
by issuing a service pistol to a member that is not fit and
adequately trained in its use, the Service acted negligently and
that
there is a legal duty on the Service to dispossess a member from such
service pistol if he or she is not adequately trained
in its use.”
[9]
In para 4(1) of the same document the following
is stipulated:
“
4(1) Before a permit may be
issued to a member, the commander
[3]
must determine if the member can be declared competent to possess a
firearm. In order to determine whether the member may receive
a
competency declaration, the commander of the member must ascertain
whether the member –
(a)
received the required training as determined by
the National Commissioner; and
(b)
can be regarded as a fit and proper person to
possess a firearm in terms of section 9(2)(d) to (p) of the Act.”
[10]
Paragraph
(4)(8) stipulates that
“
if
a member has been found unfit to possess a firearm, an endorsement to
this effect must be made on the competency declaration
of the member
which is filed in the personal file of the member”.
[11]
I
shall revert to the issue of record keeping again later herein.
[12]
The
National Instruction further directs that before a permit may be
issued to a member, the commander of the member must determine
if the
member can be declared competent to possess a firearm. In this regard
it is common cause that:
12.1
In
terms of para 4(2) of the National Instruction, if the commander of
the member is satisfied that the member is competent to possess
an
official firearm, he or she must issue a competency declaration using
the Firearms Permit System (‘FPS’).
The FPS is
defined as the computerised system used by the service for the
issuing of firearms permits, booking on and off duty
by all officials
and the management of competency declarations.
12.2
Paragraph
4(3) makes specific provision that if the FPS is not available for
the issuing of the competency declaration a manual
competency
declaration may be issued to the member until the FPS is operational
and a competency declaration can be issued from
the FPS.
12.3
Paragraph
4(4) provides that the competency declaration must be completed in
duplicate. Section 4(6) provides that both copies
of the
competency declaration must be signed by the member and his or her
commander in order for the declaration to be valid.
Further that one copy must be provided to the member and the other
copy placed on the member’s personal file under sub-folder.
[4]
12.4
Paragraph
4(7) provides that if for any reason a member is no longer deemed
competent to possess a firearm the competency status
on the FPS must
be revoked by his or her commander to prevent the issuing of a
firearm to the member. Upon completion of
an enquiry into the
fitness of the member to possess a firearm, whether in respect of s
102 or s 103, the result must be forwarded
to the relevant commander
of the member.
12.5
In
terms of para 3(3) of the National Instruction the head of an
official institution may only issue a permit if an employee is
a fit
and proper person to possess a firearm and has successfully completed
the prescribed training and test for the safe use of
a firearm.
12.6
Paragraph
5(6) of the National Instruction requires that all station commanders
must ensure,
inter
alia
,
that (a) members receive the prescribed training, (b) that members
are trained to use the FPS, (c) that permits are only issued
to fit
and proper members who successfully completed the prescribed
training, and (d) that all members, officials and firearms
under
their command are registered in the FPS.
12.7
Further,
para 6(3)(a) requires that before a commander of a member may issue a
permit to possess an official firearm on the FPS,
he or she must
first confirm that (i) the member is registered on the FPS; (ii) the
member has received a competency declaration;
(iii) the member is an
‘Authorised Firearm Recipient’ on the FPS and (iv) the
firearm is registered on the FPS.
12.8
Paragraph
6(3)(b) provides that if a GPA firearm (Government Property
Administration firearm) is issued to a member, a temporary
permit to
possess an official firearm (SAPS 543(a)) must be issued by the
commander
[5]
to the member for
the duration of the member’s official duty
[6]
.
On return of the firearm the permit for that firearm must be returned
and filed. Paragraph 6(3)(f) refers to the issue
of a manual
SAPS 543 from the SAPS 543 register.
12.9
Reference
is made in para 6(3)(g) to registers that are kept for that purpose
which have a serial number which controls the issue
of such temporary
permits.
12.10
Provision
is also made in terms of para 6(3)(l) for the permit to be returned
for filing on expiry of the permit or return of the
firearm.
Reference is made in para 6(3)(m) to the file, under reference
27/5/3/1/45, for the filing of all returned permits.
Provision
is also made for the returned permits on file to be kept for a period
of 10 years.
12.11
Paragraph
7(1) of the National Instruction provides that if a member is not a
fit and proper person to possess a firearm he or she
may not be
issued with a permit. Further that there is a legal duty on the
commander to dispossess him or her from such firearm
if he or she is
not fit to possess it or not adequately trained in its use.
12.12
In
terms of para 7(3) members who fail the competency training must be
provided with two remedial training sessions within 30 days
of the
initial assessment. Further that if the operational member
continuously fails the training or shooting practice, he
or she must
be dealt with in terms of the prevailing Human Resource policies. In
practice that means that he or she does clerical
duties.
[13]
Colonel
Nodume confirmed the procedures relating to competency testing, and
the application process in terms of which a firearm
may be issued to
a member of the force, which are closely regulated by,
inter
alia
,
the following:
13.1
National
instruction 4 of 2016 relating to the firearm permit system, firearm
training and competency declaration.
[7]
13.2
Standing
order (STORES) 48 relating to official firearms and ammunition.
[8]
13.3
Standing
order (general) 251.
[9]
13.4
The
Firearms Control Act 60 of 2000
;
13.5
The
Firearms Control Regulations of 2004.
[10]
[14]
In his
evidence Colonel Nodumee explained the processes in terms of which a
member is required to be found to be competent and to
be issued with
a competency certificate, where after he or she is then required to
apply to be issued with a firearm.
[15]
He
further explained (and it was not disputed) that a member who wishes
to be in possession of a firearm after hours, would need
to apply for
such permission and this process would include the completion of
annexures A, B, C and D to the Firearms Control Regulations
2004.
[11]
[16]
He
also referred to the various administrative processes which were
prescribed
in
terms of record-keeping, both on the personnel file of the member
concerned, in an SAP 543 register, in a registry file (with
reference
SAPS 27/5/3/1/45) in respect of each firearm and on a centralised
computer database on which the same information would
be stored.
[12]
NON-COMPLIANCE:
[17]
The
evidence presented disclosed that the above provisions were to a
large degree not complied with in respect of Mahlanza.
Following compelled discovery, Mahlanza’s personnel files were
made available, but no competency certificate could be found.
This
raises perhaps the greatest concern in this matter: Despite a
competency certificate or declaration being a prerequisite in
terms
of para 4 of the National Instruction referred to above for the issue
of a firearm to a member, defendant was unable to produce
any
competency certificate in respect of Mahlanza.
[18]
The
circumstances under which the firearm was allegedly issued became
even more perplexing when defendant’s own witness, Warrant
Officer Stemmet, testified that he was not provided with a competency
certificate before issuing the SAPS 543.
[13]
[19]
Defendant
had further problems in this regard:
19.1.
Warrant Officer Stemmet, who signed the temporary permit was not the
Station Commander, but held the rank
of sergeant at the time;
19.2.
He relied on information provided by one Mr Smith, a civilian in
charge of the safe to provide information
which confirmed that proper
procedures were not followed when Mahlanza failed his training in
2015, 2016 and 2017;
19.3.
The handgun was issued to Mahlanza for a period when he would have
been off duty.
[14]
[20]
It is
common cause that none of the essential documentation to substantiate
a motivated application, alleged competence or alleged
lawful
possession of a firearm by Mahlanza could be found in his personnel
file or in any of the other control sources referred
to above.
All defendant was able to adduce in this regard was a ‘questionable’
SAPS 543 which allegedly rendered
Mahlanza’s possession of the
firearm lawful.
[21]
I
agree with plaintiff that had the missing essential evidential
material been in existence it could have been obtained from a number
of different sources, including the controls (files, registers,
computer database) where the same documentation would have been
filed
in different places within the administrative record-keeping of the
SAPS. The clerk called by defendant, Mr Smith,
even made
reference to emailed communications which he inferred would have
contained the necessary applications.
[15]
This material was not sourced, discovered or produced in evidence as
would have been expected given that emails are readily
retrievable
from a database, even years after the event.
[22]
It is
of note that Warrant Officer Stemmet, who testified that he had
issued the SAPS 543, in response to a question from the Court
said
that he had based
his
decision
to issue the SAPS 543 on nothing other than a copy of a computerised
printout (SAPS 96) which had conveyed to him that the member
had
passed a remedial shooting session on 27 June 2017.
[16]
[23]
Therefore,
on the defendant’s own case, had this questionable SAPS 543
been issued, it had not been issued with the required
administrative
processes having been complied with prior to the issue of the
firearm. The necessary competency certificate,
application to
possess a firearm and application to possess a firearm after hours
were not in place.
[24]
Colonel
Nodume was clear in his evidence that in the normal course a person
who has a s 108 firearm is issued with a SAPS 543 for
a period of 12
months which is the duration that his competency certificate would
cover.
[17]
In respect of a s
107 firearm (a firearm issued to a member who comes on duty for a
shift and who hands back the firearm at the
end of the shift), a SAPS
543 would be issued in the normal course for the duration of that
shift only.
[18]
Further that
the recordal of such issue and return would be done in a SAPS 543
register, or the loose leaf version of the SAPS
543, and would be
retained on a file once the firearm was handed back at the end of the
shift. This evidence was unchallenged.
[25]
In my
view, having had regard to the evidence and having had the benefit of
a typed record, I am of the view that there was a lamentable
state of
affairs at Kensington SAPS as none of the police officers fully
understood the procedure involved regarding dangerous
weapons. I am
further at a loss as to why none of the witnesses fully comprehended
the system that should safeguard them, their
members and the public.
On the evidence, in my view, the system should work as follows:
25.1.
The departure point of Stores (see paragraphs 17.18.3 and paragraphs
19.2) is that “a member is not
entitled to be issued with an
official firearm … when off duty”. It is, in other
words, a right, which has to be earned.
25.2.
No doubt, after many years of experience, and having passed the
maintenance test annually, many officers
would qualify for a “108”
permit, meaning that they, as of right, can take their firearm home
with them.
25.3.
Younger officers and recruits obviously have to still prove
themselves in firearm competency, but are allowed
to carry a weapon
on a daily basis in terms of a “107” permit, whilst on
patrol, should they have passed the necessary
competency test.
25.4.
These “107” permits are issued on the following basis:
25.4.1. The
commander confirms, at the morning parade, that the member had passed
his competency test; and
25.4.2. The
commander then (as a second check), after satisfying him/herself that
the member is of sound mind and not under the
influence of
alcohol/drugs, either manually, or through a computer printout,
issues the member with a SAPS 543 for the day.
[26]
As a
result of such prudence, a delinquent candidate like Mahlanza, would
be excluded from the “108 permit members”
and would
scarcely qualify for “107 permit membership”.
[27]
Colonel
Nodume testified that in the event of a SAPS 543 not falling into any
of the above categories, and it being required for
a different
duration, the member would be required, in writing, to motivate the
need for the said SAPS 543.
[19]
This motivation would be included in his personnel file
[20]
and be found amongst the SAPS 543 records. This evidence was
from a senior member of the SAPS and was also unchallenged.
[28]
Colonel
Nodume described the SAPS 543
in
casu
to be questionable as it did not follow the usual s 107 or s 108
format.
[21]
[29]
The
SAPS 543 was for a 13-day duration and no written motivation for that
period could be produced. Significantly, in the personnel
file of
Mahlanza internal correspondence was found, in the context of the
disciplinary proceedings against him in the instant matter,
where the
question is asked as to why it had been necessary for him to have a
firearm after hours and the remark is made that the
SAPS 543,
supposedly issued in the circumstances, was ‘questionable’.
[22]
[30]
The
evidence of Mr Smith had been that in respect of a s 108 firearm
there would be no reason to issue a SAPS 543 because members
who had
a s 108 firearm had a card and were entitled to take the firearm
home.
[23]
It was members
who had a s 107 firearm that were issued for the duration of a shift
that required a SAPS 543 for the duration
of that shift. Given
his evidence that Mahlanza was issued with a 108 firearm (which
should have been dispossessed) the SAPS
543 issued becomes even more
inexplicable.
[31]
After
hearing the evidence of Warrant Officer Stemmet, who was unable to
explain who had given the instruction for the so-called
two-week
issue of a SAPS 543; was unable to say for how long this arrangement
had been in place and was unable to say that he had
issued anything
more than ten such unusual SAPS 543’s
[24]
,
I was left with even more concerns regarding the circumstances where
under defendant had dealt with the issuing of firearms.
Warrant
Officer Stemmet’s evidence was unpersuasive and in conflict
with the normal procedures testified to by Colonel Nodume.
Despite
putting it Colonel Nodume that Colonal Scanlan would come to testify
about the issuing of 2 week permits, he was not called.
FAILURE
TO PRODUCE DOCUMENTS/EVIDENCE
[32]
Plaintiff’s
representatives, in an endeavour to access the record-keeping in the
SAPS 543 register, or files in which a loose-leaf
version would be
kept, filed a discovery notice in terms of rule 35(3) calling upon
defendant to produce such registers and/or
files in respect of
Mahlanza specifically and in respect of the entire Kensington Police
Station generally for an extended period.
[33]
The
response of defendant, under oath, to the rule 35(3) notice was to
indicate that such registers and files could not be found
despite a
diligent search.
[34]
This
is a startling response given that both the witnesses called by
defendant, Mr Smith and Warrant Officer Stemmet, were clear
in their
evidence that a seamless record of SAPS 543s was available at
Kensington SAPS, either in the form of a file on which the
loose-leaf
versions of the documents were kept, alternatively in the form of a
register where details relating to the issue and
return of firearms
were noted. In fact, given all the regulations and checks and
balances that had been put in place, I would have
expected these
documents to have been readily available.
[35]
Both
of these witnesses stated, unambiguously, that those records were to
be found at the Kensington Police Station.
[25]
[36]
The
failure to produce the documentation sought in terms of rule 35(3) in
these circumstances leads me to the conclusion that defendant
was
evasive and unwilling to make available this objective documentation
which would have served to crucially cast light on the
practices at
the relevant time in issuing SAPS 543 certificates, to members in
general, and to Mahlanza in particular.
[37]
I
cannot but draw an adverse inference from this conduct. It
appears that defendant has sought to conceal these records and
prevent plaintiff from making use of these records in the court
proceedings. Documents that should be kept for a period of 10 years
had apparently suddenly and inexplicably disappeared. I am not
convinced that this is in fact the case.
[38]
Astonishingly,
from the limited documents belatedly made available, it appears that
shortly after the incident Mahlanza reported
back for duty and was
again issued with a firearm and ammunition.
[39]
Plaintiff’s
counsel argued that I should take cognizance of the fact that
defendant failed to call key witnesses who would
have been able to
cast light on the events in question. The first of which, he
argued, is Mahlanza who would have been in
a position to explain,
inter
alia
,
the circumstances under which he had been issued with the firearm.
He was not called and no explanation was given for the
failure to
call him to testify. The second important witness for defendant
to have called was the Station Commander of SAPS
Kensington who would
have been in a position to take the court through the regulatory
processes and record-keeping involved in
the issuing of firearms in
general and, more specifically, in regard to the issuing of the
firearm to Mahlanza.
[40]
Instead,
defendant called an administrative clerk from SAPS Kensington, Mr
Smith, who controlled the strongroom and the occurrence
book relating
to the movement of firearms in and out of the strongroom.
Shockingly, the evidence of Mr Smith revealed that
on the various
occasions during 2015, 2016 and 2017 when Mahlanza had failed his
maintenance shooting, his firearm had, save for
once, not been
withdrawn and placed in the strongroom as ought to have been done.
It appears from the evidence that Mahlanza
had from 2015 to 27 June
2017, failed all handgun maintenance shooting sessions and could no
longer have held a valid or lawfully
issued 108 permit. Mr Smith had
little knowledge of the other administrative processes involved in
the issue of firearms.
The focus of his job was narrow and
related primarily to the strongroom.
[41]
Warrant
Officer Stemmet could cast little further light on the process save
for his limited involvement in the alleged issue of
the SAPS 543
where the basis for the issue had not been substantiated. The
evidence of Warrant Officer Stemmet, that he had
issued the SAPS 543
simply on the basis of the SAPS 96 and nothing else, even were it to
be accepted, demonstrates a shocking lack
of control in the process
of the issue of firearms. Especially so as the issue of the
firearm had been to a member who had
the track record Mahlanza had
and where no competency certificate had been issued or made available
to Warrant Officer Stemmet.
[26]
[42]
I may
still have understood why Mahlanza was not called, as he had been
dismissed from the service and would probably have been
difficult to
find and, if he had been found, he would probably have been unwilling
to co-operate. However, I unfortunately cannot
understand why the
Station Commander at the time of the incident was not called by
defendant to shed some light, particularly in
respect of the
important missing documentation.
DIRECT
LIABILITY:
[43]
In
the matter of
Telematrix
(Pty) Ltd t/a Matrix Cechicle Tracking v Advertising Standards
Authority SA
2006 (1) SA 461
(SCA) the first principle in claims relating to
delictual damages was expressed as follows:
“
[12] The
first principle of the law of delict, which is so easily forgotten
and hardly appears in any local text on the subject,
is, as the Dutch
author Asser points out, that everyone has to bear the loss he or she
suffers. The Afrikaans aphorism is that
“skade rus waar dit
val”. Aquilian liability provides for an exception to the rule
and, in order to be liable for the
loss of someone else, the act or
omission of the defendant must have been wrongful and negligent and
have caused the loss. But
the fact that an act is negligent does not
make it wrongful although foreseeability of damage may be a factor in
establishing whether
or not a particular act was wrongful. To elevate
negligence to the determining factor confuses wrongfulness with
negligence and
lead to the absorption of the English law tort of
negligence into our law, thereby distorting it.
”
[44]
Holmes
JA in the matter of
Kruger
v Coetzee
1966 (2) SA 428
(A) at 430 E- G set out the well-known test for
establishing negligence as follows:
“
(a)
A diligence paterfamilias in the position of
the defendant –
(i)
Would
foresee the reasonable possibility of this conduct injuring another
in his personal property and causing him patrimonial loss;
and
(ii)
Would
take reasonable steps to guard against such occurrence; and;
(iii)
The
defendant failed to take such steps.
This has
been constantly stated by this Court for some 50 years. Requirement
(a) (ii) is sometimes overlooked. Where a diligence
paterfamilias in
the position of the person concerned would take any guarding steps at
all and, if so, what steps would be reasonable,
must always depend
upon the particular circumstances of each case.
”
[45]
On
the question of wrongfulness Brand JA in the matter of
Hawekwa
Youth Camp v Byrne
2010 (6) SA 83
(SCA) at 90I to 91A stated as follows:
“
The
principles regarding wrongful omissions have been formulated by this
Court on a number of occasions in the recent past. These
principles
proceed from the premise that negligent conduct which manifests
itself in the form of a positive act causing physical
harm to the
property or person of another is prima facie wrongful. By contrast,
negligent conduct in the form of an omission is
not regarded as prima
facie wrongful. Its wrongfulness depends on the existence of a legal
duty. The imposition of this legal duty
is a matter for judicial
determination, involving criteria of public and legal policy
consistent with constitutional norms. In
the result, a negligent
omission causing loss will only be regarded as wrongful and therefor
actionable if public or legal policy
considerations require that such
omission, if negligent, should attract legal liability for the
resulting damages (see EG Telematrix
(Pty) supra para 14; Local
Transitional Council of Delmas supra paras 19 to 20; Gouda Boerdery
Bk v Transnet
2005 (5) SA 490
(SCA)
)”
[46]
On
the issue of a legal duty he held that:
“
The
imposition of this legal duty is a matter for judicial determination,
involving criteria of the legal policy consistent with
constitutional
norms. In the result, a negligent omission causing loss will
only be regarded as wrongful and therefor actionable
if public or
legal policy considerations require that such omission, if negligent,
should attract legal liability for the resulting
damages
”
[47]
Further
and in order for a plaintiff to hold a defendant delictually liable a
causal
nexus
between a defendant’s conduct and the damages is required.
Brand JA in dealing with the element of causation in
ZA
v Smith
2015 (4) SA 574
(SCA) at 589D-G stated the following:
“
The
criterion applied by the court a quo for determining factual
causation was the well-known but-for test as formulated, e.g.,
by
Corbett CJ in International Shipping CO (Pty) Ltd v Bentley
1990 (1)
SA 680
(A). What it essentially lays down is the enquiry- in
the case of an omission – as to whether, but for the
defendant’s
wrongful and negligent failure to take reasonable
steps, that plaintiff’s loss would not have ensued. In
this regard
this Court has said on more than one occasion that the
application of the ‘but-for test’ is not based on
mathematics,
pure science or philosophy. It is a matter of
common sense, based on the practical way in which the minds of
ordinary people
work, against the background of everyday-life
experiences. In applying the common-sense, practical test, a
plaintiff therefore
has to establish that it is more likely than not
that, but for the defendant’s wrongful and negligent conduct,
his or her
harm would not have ensued. The plaintiff is not
required to establish this causal link with certainty.”
[48]
Plaintiff’s
counsel referred me to
Shozi
and Others v Minister of Safety and Security and Another
[2016] JOL 34975
(KZD). This judgment, as aforesaid, is
pertinently referred to in the National Instruction 4 of 2016. In
paragraph 1(1) of
the National Instruction, it is stated that the
purpose of the instruction is to regulate the issuing of competency
declarations
and firearm permits to members of the force who are (a)
fit and proper, and (b) have successfully completed the prescribed
training
and the prescribed test for the safe use of a firearm in
terms of the provisions of
s 98
of the
Firearms Control Act 60 of
2000
and regulation 79 of the Firearms Control Regulations.
[49]
In the
aforesaid matter the Court upheld the plaintiffs’ contention
that by issuing a service pistol to second defendant,
who was not fit
and adequately trained in its use, the first defendant (the Minister)
had acted negligently in the light of the
State’s
Constitutional duty to protect its citizens and the defendant was
held delictually liable for plaintiffs’ injuries.
In this
regard Mokgohloa J at para 32 stated that:
‘
...
In
my view, the first defendant issued Makhathini with a firearm when he
was either not fit or not adequately trained in the use
and in the
safety standards to be observed in regard to the handling of a
firearm. This conduct placed the members of the
public at risk
because Makhathini used his firearm negligently when he shot the
plaintiffs whilst under the influence of alcohol.
I find that
it was indeed reasonably foreseeable that by arming an incompetent
and untrained police officer with a firearm, innocent
persons could
be harmed. This wrongful conduct attracts liability.
’
[50]
In
regard to such liability and in
Minister
of Safety and Security v Booysen
(35/2016)
[2016] ZASCA 201
(9 December 2016) Makgoka AJA pointed out
that liability based on the mere fact that the SAPS issued a firearm
to a police officer,
would amount to the imposition of strict
liability, which is impermissible. In para 17 the court pointed
out that for liability
to arise under such circumstances “…
there
must be evidence that the police officer in question was, for one
reason or the other, known to be likely to endanger other
people’s
lives by being placed in possession of a firearm, and despite this,
he or she was nevertheless issued with the firearm
or permitted to
continue possessing it. Such was the situation in
F
,
where the police officer was retained in the employ of the SAPS as a
detective despite previous criminal convictions. See
also the
facts in Ramushi v Minister of Safety and Security (6859/2002)
ZAGPPHC 175 (18 August 2021).
”
[51]
As
aforesaid and in regard to whether a defendant’s conduct, if
considered in the context of being an omission, amounted to
wrongful
conduct, a legal duty must be established. In this regard in the
matter of
Cape
Town City v Carelse and Others
2021 (1) SA 355
(SCA) in paras 37 and 38 the Court unanimously held
that:
“
[37]
… With reference to decisions of this court dealing with
omissions to take precautionary steps to
prevent harm, the High Court
had regard to the fundamental principle that allegedly negligent
conduct in the form of an omission
is not prima facie wrongful.
Wrongfulness depended on the existence of a legal duty. The
High Court had regard to the
following dictum from this court’s
decision in Hawekwa Youth Camp v Byrne. (See reference above)
[48]
In Gouda and Hawekwa this court pointed out that, depending on the
circumstances, it might be appropriate
to enquire first into the
question of wrongfulness and for that purpose to assume negligence.
Of course, in the event of
the absence of negligence – in some
cases that might be clear – the question of wrongfulness does
not arise.”
[52]
As in
the aforesaid matter, the parties in this matter also erroneously
referred to “a duty of care” in the court a
quo whilst in
fact the inquiry is whether defendant had a “legal duty”
towards Sonwabile. As explained in the aforesaid
matter a legal duty
pertains to wrongfulness whilst a duty of care derives from English
Law and is associated there with the question
of negligence.
[27]
[53]
Recently
and in the matter of
Nandi
Jacobs v Minister of Justice and Correctional Services
(431/2020)
[2021] ZASCA 151
(27 October 2021), it was plaintiff’s
case that a certain Mr Botha had
inter
alia
attacked
and attempted to rape and assault her. Her claim against the Minister
was based on the fact that given Mr Botha’s
criminal record and
the information that served before the Parole Board, he should not
have been released on parole and that Mr
Botha had violated his
parole conditions, but was not returned to prison. As a result of the
aforesaid he was left at large to
attack Ms Jacobs.
[54]
Whilst
dealing with the question of whether the evidence led at a trial
could sustain a claim against the Minister the Court held
that:
“
[29]
In my view, on
the
documentary
evidence
placed
before
the high court, a court
could find that the Parole Board acted wrongfully and negligently in
releasing Mr Botha on parole.
Convicted of three sexual
offences, the superficial commentary offered in the social worker’s
report, the vagueness of what
was said by the case management
committee, and the lack of a psychologist’s report, make out a
case on the basis of which
it could be said that the Parole Board
decided to release Mr Botha on parole
when there was significant risk attached to their decision. Until
such time as those who made the parole decision come to give
evidence
and explain what they did, there is sufficient evidence that
could permit of a finding that the Parole Board acted
wrongfully and
negligently. Once that is so, the evidence could also suffice
to establish causation, since a proper appreciation
of the risk could
have led to a denial of parole and the continued imprisonment of Mr
Botha.”
[55]
Finally,
and in the matter of
Pehlani
v Minister of Police
(9105/2011)
[2014] ZAWCHC 146
, the difference between matters
concerning direct liability and vicarious liability was aptly dealt
with by Rogers J when he explained
in para 32 as follows:
“
The
normative values underlying the imposition of vicarious liability
would be served by acknowledging the risk created for members
of the
public when police officials are placed in possession of dangerous
weapons and by encouraging strict official control over
the issuing
of firearms to police officials. This does not mean, of course,
that vicarious liability is dependant on whether
or not the Minister
or his officials were negligent in issuing the firearm to the
particular official;
if
such negligence were shown, SAPS would be held liable on account of
such negligence and it would not be necessary to determine
whether
the Minister was vicariously liable for the intentional wrongdoing of
the shooter. What vicarious liability achieves
is to contribute
to a culture of strict control of a risk-creating activity
.”
(my emphasis)
DISCUSSION:
[56]
On
application of the aforesaid principles and in the circumstances, I
find that defendant is directly liable for the damages suffered
in
the instant matter in that:
56.1
Mahlanza
had not been issued with a competency declaration at the relevant
time, or at all, and had consistently demonstrated himself
to be
incompetent in the use of a firearm over a number of years prior to
the shooting incident, as well as after the shooting
incident to the
knowledge of defendant. The fact that shortly before the
incident he had passed a remedial training course
does not, in the
bigger picture, render him a suitable candidate to be issued with a
firearm or justify the issue of a competency
declaration. In
any event, no competency declaration, as contemplated in para 4 of
the National Instruction, was ever produced
and on defendant’s
own version, no competency certificate had been presented to Warrant
Officer Stemmet before he allegedly
issued the questionable SAPS 543.
56.2
Mahlanza
had a poor disciplinary record, which included complaints relating to
a range of issues including violent conduct on his
part, as set out
above. This fact, together with his dismal maintenance shooting
record, should have been carefully considered
and investigated by
defendant before Mahlanza was placed in possession of a fire-arm and
ammunition.
56.3
None
of the appropriate procedures or protocols had been adhered to in
regard to the issue of the firearm to Mahlanza. It
follows that
at the time the incident occurred he had been placed in possession of
a police issue firearm in circumstances where
he was not lawfully
authorised to be in possession thereof. That lack of lawful
authority was directly attributable to negligent
practices and
improper controls on the part of defendant.
56.4
A
reasonable person in the position of defendant would have foreseen
that issuing Mahlanza with a firearm in circumstances where
none of
the statutory safeguards were complied with could cause a danger to
the public and that harm was imminent.
In
the current circumstances there can be no doubt that there is factual
causation. Had defendant not placed Mahlanza in possession
of the
police issue firearm, Sonwabile would not have been shot on 22 July
2017.
56.5
The
manner in which Mahlanza conducted himself on 22 July 2017
demonstrates without question that he was not a fit and proper person
to be placed in possession of a firearm and that he was decidedly
incompetent in the use of a firearm.
[57]
I
agree with plaintiff’s counsel that it is unsurprising that a
blameless boy such as Sonwabile suffered a bullet wound and
a tragic
life-changing injury given the reckless and irresponsible conduct of
Mahlanza. Mr Mathole, who had seemingly been
the intended
victim of the shooting, was fortunate to survive the ordeal with only
two flesh wounds, despite 6 or 7 shots having
been fired in his
general direction. Ironically, it would appear that Mr Mathole
survived this incident as a result of Mahlanza
incompetence with a
handgun. As noted before, it appears Mahlanza was issued with 30
rounds of ammunition. He discharged several
shots during the
incident, yet returned 29 rounds together with his firearm after the
incident. The inescapable conclusion is that
Mahlanza, given the lack
of controls and practises at Kensington Police Station, was further
in possession of unlawful ammunition.
[58]
In
addition to liability based on defendant’s wrongful issuing of
a firearm to Mahlanza, (commission) there is no doubt that
defendant’s members, by simply issuing a temporary permit to
Mahlanza despite his poor record, also negligently omitted to
apply
the prescribed procedures and protocols. Warrant Officer
Stemmet, on his own version, exercised no reasonable care
in issuing
the temporary 543 permit. He did not investigate, consider nor did he
confirm whether Mahlanza in fact obtained a competency
certificate in
terms of the National Orders.
[59]
As in
the matter of
Minister
of Safely and Security v Hamilton
2004 (2) SA 216
(SCA) defendant’s members, if they had executed
their legal duties properly, would have come to the conclusion that
Mahlanza
was not fit to possess a firearm and that by issuing one to
him is such circumstances would, applying the considerations of
reasonableness,
fairness and legal policy, attract liability.
[60]
In
light of the findings set out above I need not make any finding
regarding vicarious liability herein.
[65]
In the circumstances the following order is made:
65.1Plaintiff’s
claim on the question of liability is upheld with costs.
65.2Defendant is
ordered to compensate plaintiff for such damages as may be proven.
A De Wet
Acting Judge of the High Court
Coram:
De
Wet AJ
Date of Hearing:
20 April 2021, 21 April 2021, 22 April 2021, 28 April 2021, 20 May
2021 and receipt of written submissions.
Date
of Judgment:
4 November 2021
Counsel
for Plaintiff:
Adv Craig Webster SC
Attorneys for
Plaintiff:
Lowe & Petersen Attorneys
Counsel
for Defendant:
Adv
Alton Samuels & Adv Jerome van der Schyff
Attorneys for
Defendant:
State Attorney
[1]
See trial bundle page 61
[2]
See trial bundle pages 141 to 147: The Occurrence Book at Kensington
SAPS shows that on 31 July 2017, 9 days after the incident,
and on 1
and 2 August 2017 he was again issued with a fire-arm and ammunition
[3]
This must be the Station Commander: Record Smith Page 157 line 20 to
158 line 5
[4]
Record Page 27 line 18 and Page 28
[5]
The Station Commander
[6]
In other words, not for “off-duty”
[7]
Record page 26 line 7
[8]
Record page 26 line 6
[9]
Record page 29 line 10
[10]
Record page 30 line 7
[11]
Record page 32 line 22
[12]
Record page 27 line 18; page 37 line 14
[13]
Record Page 278 lines 2 – 9
[14]
In this regard section 6(1) of the Standing Order (Stores) 48 –
Official firearms and ammunition (“Stores”)
is
important. It states that “[A] member is not entitled to be
issued with an official firearm on his or her personal inventory
for
use in his or her private capacity when off duty”.
[15]
Record page 168 line 2
[16]
Record page 277 line 19 to 278 line 11
[17]
Record page 34 line 19
[18]
Record page 73 line 1
[19]
Record page 99 line 13
[20]
Record page 100 line 2
[21]
Record page 77 line 10, 94 line 15 and 96 line 14
[22]
Trial bundle page 132
[23]
Record page 199 line 19 to 200 line 4
[24]
Record page 258 line 5 – 11, page 260 line 17
[25]
Record page 190 line 17 and page 266 line 25
[26]
Record page 278 line 13
[27]
See p 368 para 50 of the Judgment read with Hawekwa supra p1 para 21