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[2015] ZASCA 147
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Dlanjwa v The Minister of Safety and Security (20217/2014) [2015] ZASCA 147 (1 October 2015)
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IN
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 20217/2014
In
the matter between:
SANELA
DLANJWA
Appellant
and
THE
MINISTER OF SAFETY AND SECURITY
Respondent
Neutral
citation
:
Dlanjwa
v The Minister of Safety and Security
(20217/2014)
[2015]
ZASCA
147
(01 October 2015)
Coram:
Maya
ADP, Bosielo, Leach, Tshiqi and Mbha JJA
Heard:
17
August 2015
Delivered:
01
October 2015
Summary:
Delict
– dependants’ action for damages arising from loss of
support –policeman injuring his wife and taking his
own life
with service firearm – probabilities that wife reported his
violent conduct against her and his threats of suicide
to the police
– police negligent in failing to dispossess him of firearm –
wrongfulness established.
ORDER
On
appeal from: Eastern Cape Local Division,
Mthatha:
(Tshiki and Van Zyl JJ, Alkema J dissenting, sitting as a court of
appeal)
1
The appeal is upheld with costs.
2
The decision of the Full Court is set aside and replaced with the
following order:
‘
The
appeal is dismissed with costs.’
JUDGMENT
Maya
ADP
(
Bosielo,
Leach, Tshiqi and Mbha JJA concurring
):
[1]
This is an appeal against the judgment of a full court of the Eastern
Cape Local Division, Mthatha (Tshiki
and Van Zyl JJ, Alkema J
dissenting) (the High Court). The majority overturned a judgment of a
single judge (Petse J) who had been
called upon solely to decide the
merits of the appellant’s damages claim in the sum of
R5 858 500 against the Minister
of Safety and Security (the
Minister) and his erstwhile co-defendant, the Station Commander of
Ngangelizwe Police Station, Mthatha
(the second defendant). The trial
court had held the Minister and the second appellant liable. The full
court overturned that order.
The appeal is with this court’s
special leave.
[2]
The litigation arises from a tragic domestic violence incident which
occurred on 19 April 2006 and left
the appellant with horrendous
gunshot injuries inflicted by her late husband, Sergeant Thandikhaya
Dlanjwa (the deceased). The
deceased was employed by the South
African Police Service (SAPS) and was stationed at Central Police
Station, Mthatha. After shooting
the appellant with a service firearm
(the firearm), the deceased turned the firearm on himself with fatal
consequences. The
appellant then sued the minister and the
second defendant, in her personal capacity, for general damages,
medical expenses, loss
of earnings and loss of support arising from
her injuries and the deceased’s suicide. She also sued for loss
of support on
behalf of her infant triplets born of her marriage with
the deceased.
[3]
In
her summons the appellant alleged that the shooting and commission of
suicide by the deceased were caused by the negligence of
the second
defendant and/or certain police officials attached to his station.
These police officers were negligent, so it was asserted,
in that the
deceased was granted permission to possess the firearm when not on
duty without observance of the relevant official
procedures.
Furthermore, it was claimed, these police officers failed to (a)
dispossess the deceased of the firearm, (b) initiate
disciplinary
steps against him and (c) have him criminally charged despite her
previous requests and their knowledge that the deceased
abused
alcohol, had a violent temper and suicidal tendencies, had assaulted
her, pointed a firearm at her and threatened to shoot
her and
thereafter kill himself, which led her to obtain a protection order
against him. Thus, it was alleged, the police failed
to take measures
to protect the appellant from being injured by the deceased and
prevent him from killing himself, which they should
have foreseen, in
breach of the legal duty they owed her.
[4]
The action was defended and went to trial at which both sides adduced
evidence. The gist of the appellant’s
testimony was that during
2005 her marriage to the deceased, whom she married in June 2004
after a brief courtship, had quickly
soured. They squabbled mainly
over her awkward working hours at a local Kentucky Fried Chicken
outlet. Her duties included night
shifts ending at 22h00, after which
she would struggle to get public transport, causing her to arrive
home late. The deceased,
a heavy drinker, suspected that she was
cuckolding him and even questioned his paternity of her pregnancy
with their triplets.
He also had trouble at work, where he dealt with
stolen vehicles, and had been under on-going investigation. As a
result, he was
occasionally arrested and once had the firearm
confiscated although she subsequently saw it in his possession. The
bickering soon
graduated to physical assaults which she reported to
his mother to no avail. He would also point the firearm at her and
threaten
to shoot her. She always forgave him however because he
would promise to desist from his violent conduct and she was
protecting
him as she did not want him to be arrested.
[5]
The appellant’s account in relation to the events which
occurred just before the shooting incident
was inconsistent during
her cross-examination regarding the dates when the deceased pointed
the firearm at her for the first time,
her initial approach to the
police for assistance and the number of times he threatened her with
the firearm. But she was unswerving
on the substance of her clashes
with the deceased. She narrated that in February 2006 she returned
from work around midnight, accompanied
by a friend who had fetched
her from work when public transport did not arrive. The deceased was
extremely angry. He would not
accept her explanation for her late
arrival and wanted to assault her. Out of fear that he might do so
and use the firearm as he
had previously threatened, she approached
Ngangelizwe Police Station to request assistance and have him
disarmed. The policeman
who attended her told her that he knew the
deceased and that he had a violent disposition. For that reason he
did not want to be
involved and instead dispatched two of his
colleagues to see her home safely. These policemen drove her home in
a police vehicle
and managed to pacify the deceased who then allowed
her back in the house without incident.
[6]
There was a brief lull which, however, broke on 6 March 2006. She
returned from work during the afternoon
and found the deceased angry
because her cellular phone, which she had left at home, was off when
he called her earlier. He pointed
the firearm at her and tried to
assault her. She managed to escape and sought refuge from their
landlady who then tried to reason
with the deceased. Although he
appeared to calm down she did not trust him and fled with her friend
who was one of the triplet’s
nannies, Vuyokazi. They spent the
night at a friend’s house and the appellant reported the
incident at the second defendant’s
station in the morning. She
still did not wish to have the deceased arrested and merely wanted
him disarmed. There she was advised
to obtain a protection order. She
promptly did so after presenting a statement written by her that
‘[the deceased] hit me
and he promise (sic) to shoot both of us
… I gave him the many (sic), he always want (sic) the money to
buy beers, he hit
me and hit my child [born out of wedlock] he always
hit me and promise to kill himself and me (sic)’. The deceased
was also
ordered to vacate the common home although this was
rescinded on the return day of the protection order on the basis of
the deceased’s
plea that he could not afford alternative
accommodation. The magistrate then ordered them to undergo
counselling.
[7]
Uneasy calm prevailed in the following two weeks until the
cataclysmic events of 19 April. She knocked
off duty in the afternoon
and socialised with Vuyokazi and a few colleagues at a shebeen. She
and Vuyokazi returned home late in
the evening. She was playing with
the babies in the nursery when the deceased, who carried a firearm,
called her from the door.
Sensing danger, she refused to go to him.
He entered the room and struck her on the head with the firearm. As
she fell, she heard
a gunshot and lost consciousness and only came
around the following day in hospital. She had sustained gunshot
wounds on her face,
chest and leg and learnt that the deceased had
killed himself.
[8]
Various police officers testified for the defence. They included
Warrant Officer Dyantyi who, as it
turned out, had attended to her on
her first visit to the police station, Warrant Officer Madyibi, one
of the two officers dispatched
by Dyantyi to take her home and
Warrant Officer Dinwayo who claimed to have attended to the appellant
together with a colleague,
Seargent Zikolo, during the second visit.
The essence of these officers’ evidence was that although the
appellant approached
the police as she alleged, she never reported
that the deceased had assaulted her and was in possession of the
firearm which he
was using to threaten and point at her. According to
Madyibi and Dyantyi, on her first visit to the police station the
appellant
merely reported that the deceased refused to let her into
their house because she had returned home in the wee hours of the
morning.
The incident was not recorded in the Occurrence Book (OB)
because it was trifling. Regarding the second visit Dinwayo alleged
that
the appellant only reported that the deceased threatened to
assault her, whereupon she was advised of her options to lay criminal
charges or obtain a protection order against him. The appellant chose
to seek a protection order only as she did not want him to
be
arrested. This incident was recorded in the station’s OB.
[9]
It was not disputed that the firearm, a Z88 9mm pistol, was recovered
at the shooting scene and belonged
to the State. But it was denied
that it had been officially allocated to the deceased.
Lieutenant-Colonel Ndzalela who was in charge
of the compilation and
maintenance of the assets inventories at the material time, and the
deceased’s supervisor, Captain
Bhabha of the Vehicle
Identification and Safeguarding Section, opined that he had obtained
it unlawfully. Incidentally, it came
to light at the trial that no
inventory of the state firearms and ammunition allocated to the
deceased’s police station had
been conducted at its armoury for
about five years. This was in breach of police regulations which
required annual stock-taking
of all state assets at police stations.
As appears from the relevant records, which included a tattered
Firearms Register,
showed the firearm had not been allocated to the
deceased at the material time. The last entry recorded that it was
returned to
the armoury by one of his colleagues on 30 October 2001.
It was recorded as missing, together with 76 other firearms, only on
3
April 2007 when an inventory was conducted for purposes of handing
over the command of the station to a new commissioner. According
to
Ndzalela, Inspector Nonjokovu who visited the shooting scene and
recovered the firearm never reported its recovery to its source,
the
deceased’s station.
[10]
The trial court decided the case on this evidence. As the appellant
had not adduced any testimony to prove
that the firearm had been
officially allocated to the deceased as alleged in her pleadings, the
court properly accepted that no
liability had arisen for the police
to monitor the deceased’s fitness to possess a firearm. The
court thus focussed its inquiry
on whether the appellant had reported
the deceased’s possession of the firearm to the police and that
he used it to threaten
her, to found a legal duty to protect her. In
the court’s view, the inconsistencies in the appellant’s
version did
not detract from its credence. This was so, it found,
because ‘she was in the main consistent in her version
and the
central features of her version withstood intense gruelling …
cross-examination’ whereas the defence version of the
events of
7 March 2006, given about five years later, was not supported by
objective documentary evidence as no written statements
had been
taken from her. The court did not believe that the appellant would
not tell the police that the deceased had assaulted
and threatened to
shoot her but report that to the magistrate, whom she approached on
the suggestion of the police only a few hours
later. The court
concluded that the police were obliged to investigate the appellant’s
report and take requisite steps to
protect her from harm,
notwithstanding her election to seek only a protection order. Their
failure to do so was, therefore negligent
and wrongful and the
appellant had discharged the onus resting on her.
[11]
The majority of the full court disagreed with all the findings made
by the trial court. It found that the
trial court’s evaluation
of the evidence was flawed because it weighed the probabilities of
the case ‘without also
addressing the credibility and
reliability of the evidence’, thus entitling it to consider
these issues afresh. It disagreed
entirely with the trial court’s
credibility findings made in respect of the appellant. The appellant
was found an untruthful
and unreliable witness. Her explanation that
she wanted to protect the deceased and did not want him to be
arrested but merely
disarmed of the firearm because he was the
family’s breadwinner, and that she reported him on Vuyokazi’s
advice, was
held against her. Its view, this explanation was
contradictory – she could not have reported his conduct to the
police because
had she done so he would have been arrested and
charged at the risk of his job. The police who attended her on 7
March 2006 had
no reason not to record that the deceased had
threatened her with a firearm. And she muddled up the dates on which
the deceased
pointed the firearm at her, because she was lying. It
found that it made no sense for her to report the deceased to the
police
in February 2006 simply because he was angry and not do so
previously when he had actually pointed the firearm at her and
threatened
to shoot her. Her explanation for reporting the incident
of the evening of 6 March 2006 only on the following morning was also
discounted because she initially said there was no transport and
later said she had no money.
[12]
The majority of the full court held that the appellant would not have
accepted the police’s failure
to disarm him and not take that
up with ‘the relevant senior authorities’ if she had made
that request and truly wanted
to have him disarmed. Moreover,
when she applied for the protection order she had not completed the
portion of the application
form which requires the magistrate to
order the police to seize any arms or dangerous weapons in the
offender’s possession.
And acceding to the deceased’s
plea to the magistrate to return to the marital home, without
insisting on an order that he
should first be disarmed, and the
absence of such an order by the magistrate, was further proof that
she neither reported the deceased’s
possession of the firearm
nor sought its seizure from the magistrate as well. Regarding the
appellant’s report to the magistrate
which mentioned the
assaults and shooting threats the full court said that the appellant
‘could differentiate between the
police and the magistrate’s
office and she was aware of what she could say to the magistrate’s
office officials as
opposed to what she could tell the police …[so]
the mere fact [that her statement] contains information about the
firearm
and threats by the deceased to shoot [her] and himself could
not necessarily mean that the same information was relayed to the
Ngangelizwe police’. In the circumstances, the probabilities
overwhelmingly pointed to the conclusion that she never informed
the
police that the deceased pointed a firearm at her and threatened her
as she alleged. Furthermore, the police became aware of
the existence
of the protection order, which was not served on them, only after the
institution of her damages claim. Therefore,
they had no legal
obligation to prevent the harm caused by the deceased and the
appellant failed to prove her case.
[13]
On further appeal before us, the crisp issue was whether the
appellant had informed the police that the deceased
had assaulted
her, pointed the firearm at her and threatened to shoot her.
[1]
Her counsel contended that the majority of the full court failed to
deal with the flaws in the defence version, failed to attach
due
weight to the probabilities in the appellant’s favour and
unduly concerned itself with the irrelevant incidents, which
occurred
in 2005, and discrepancies purportedly inherent therein instead of
focussing on the events of February and March 2006
on which her cause
of action was founded. Counsel for the defence, on the other hand,
strenuously defended the full court’s
judgment which he
contended properly assessed the evidence in its totality. In his
submission, the appellant’s version was
correctly rejected as
it was hopelessly contradictory whereas the police witnesses could
not be impeached in any manner. He further
slated the appellant for
not calling Vuyokazi, whom she claimed had been present at all
material times relating to the events of
7 March, as a witness and
argued that an adverse inference should be drawn from that omission.
[14]
As the majority judgment held, the appellant, who was a single
witness, bore the onus to prove her claim
on a balance of
probabilities. And it is from those probabilities that the court
would select a conclusion which seems to be the
more natural or
plausible (ie acceptable, credible, suitable) conclusion from amongst
several conceivable ones, even though that
conclusion be not the only
reasonable one.
[2]
In light of the irreconcilable versions that emerged from the
evidence, the choice or preference of one version over the other
ought to have been preceded by an evaluation and assessment of the
credibility of the relevant witnesses, their reliability and
of
course the probabilities.
[3]
[15]
Contrary to the majority’s finding, the defence version is not
without material flaws. The first difficulty
arises from the failure
by the police to take statements from the appellant during both her
visits to the police station, in breach
of the Standing Orders and
Instructions which required the police to record all complaints and
occurrences in the OB. The evidence
of the relevant officers, who by
their own admission worked at an extremely busy station, was
therefore based solely on their free
recall of the events which had
occurred some five years ago. That fact alone renders their evidence
unreliable.
[16]
There are other problems. In my view, Dyantyi’s evidence
regarding the February incident cannot be
given any credence
whatsoever. By his own admission, he relied entirely on Madyibi’s
recollection of the events, which he
considered trivial. In his words
‘the incident happened long ago … [and I] had completely
forgotten about it and …
was caused to remember’. He
insisted that she said nothing about a firearm because he would
otherwise have recorded her complaint
had she done so. He thus had no
independent recall of the appellant’s visit and his testimony
amounted to no more than a
hearsay account.
[17]
But even if his account were admissible, it would remain unreliable.
His explanation for his failure to record
the complaint was most
unsatisfactory. The awkward hour at which the appellant called at the
police station in itself bore out
her fear of the deceased which
could not have been engendered by the mere threat of an assault she
was alleged to have reported.
Dyantyi’s very response in
dispatching two police officers to ensure the appellant’s safe
passage, bearing in mind
that her evidence that he told her that he
knew of the deceased’s violent disposition was left
unchallenged in her thorough
cross-examination, clearly shows that he
did not find the situation trifling. Madyibi was not present when the
appellant consulted
with Dyantyi and was merely asked to escort her
home and placate the deceased. He had no knowledge of what she
reported to Dyantyi
so his unreliable account does not advance the
defence version even if it was accepted.
[18]
Only Dinwayo testified about the appellant’s visit at the
police station of 7 March 2006. Interestingly,
the relevant entry in
the station’s OB made no reference to her and indicated that
the appellant was attended only by Zikolo
who had since died when the
trial started. This evidence tallied with the admission made by the
defence in the pre-trial process
and no mention of Dinwayo’s
involvement had been made to the appellant during her
cross-examination as well. The OB entry
itself yielded no useful
detail as it merely read ‘Sanela Dlanjwa … was here
complaining of domestic violence by her
husband and the Act of
domestic violence was explained and understood. She chose to apply
for Protection Order’. One simply
does not know what Zikolo
meant by ‘domestic violence’ and the vague entry
certainly cannot redound against the appellant’s
version as to
the content of her report to him. It can safely be inferred from his
response though that he considered her complaint
serious enough to
warrant the institution of a criminal charge or a protection order.
[19]
As the trial court and the minority judgments properly acknowledged,
the appellant’s version was not
without blemish and bore some
inconsistencies. But, the proper test is not whether a witness is
truthful or reliable in all that
she says, but whether on a balance
of probabilities the essential features of the story which she tells
are true.
[4]
Importantly,
the
appellant did not deviate from her essential statement that she told
the police about the deceased’s violent conduct upon
which her
first request to the police was based and that she reported him again
in March 2006 because he had pointed the firearm
at her and
threatened to shoot her.
[20]
I agree with the trial court’s finding, endorsed by the
minority in the full court that, in any event,
whilst the appellant
may have contradicted herself on some aspects, such contradictions,
read in context, were more apparent than
real. She was subjected to a
long, drawn-out and often repetitive and confusing cross-examination.
As indicated above, the contradictions
related mainly to the dates on
which she claimed the deceased first pointed the firearm at her and
her reports thereof to the police.
A question put to her that in her
evidence in chief she alleged the deceased pointed the firearm at her
for the first time in February
2006, which is not borne out by the
record, seemingly spawned the confusion which ensued during lengthy
questioning on the aspect.
[21]
The fact however is that the appellant had indicated from the onset
that she struggled to recall dates relating
to the abuse and her
injuries. She did indicate though that the physical assaults (which
involved being struck with a belt even
during her pregnancy), the
shooting threats and pointing with a firearm had started ‘in
2005 and rolling over to the following
year’ and that the
deceased had pointed the firearm at her more than once before she
approached the police. In reaction to
relentless cross-examination on
this aspect, the trial court intervened to point out that her
testimony had been tentative about
the dates. And indeed, I find her
inability to recall the precise dates when she was threatened with
the firearm quite understandable
in the circumstances.
[22]
In answer to dogged questioning as to why she had not immediately
reported the deceased for pointing her
with the firearm she replied
that ‘[t]he problem is he would ask for forgiveness and …
he was my husband and I would
decide to forgive him and I would give
myself that hope that this thing would … come to an end …
I did not want him
to be arrested my main aim was that when he said
he was going to change I wanted him to change’. I have no
difficulty at
all accepting this guileless statement. Neither do I
find anything untoward about her evidence that she wanted to protect
him which,
to my mind, is actually compatible with this explanation.
In my view, that she did not want the deceased to be arrested, about
which she was candid, is in no way irreconcilable with her request
for the confiscation of the firearm. If she wanted to hide the
fact
of her abuse at the hands of the deceased and was focussed on not
getting him into trouble with the law, she would not have
approached
the police at all.
[23]
Moreover, I find nothing improbable about her statement that she was
unfamiliar with the relevant legal procedures
which the defence
argued was another indicator of her mendacity. She was a young (at 25
years of age), clearly unsophisticated
woman (judging from the
evidence especially her handwritten statement in the magistrate’s
court). Dinwayo’s evidence
and Zikolo’s OB entry make
clear that she knew nothing about her remedies under the Domestic
Violence Act
[5]
until
the police explained its provisions to her whereafter she made an
election. And it must be said that her explanation that
she
approached the police on the advice and insistence of her friend,
Vuyokazi.
[24]
I fail to understand why the appellant must be indicted for not
having complained to senior officers at the
police station when the
deceased was not disarmed as the defence counsel urged us to do. The
duty lay squarely on the police to
investigate her complaints once
she reported that she feared for her safety. As the trial court
pointed out, the Constitution,
in s 12 (1
)(c)
which guarantees the right to freedom and security of the person,
including the right to be free from all forms of violence, and
the
South African Police Service Act,
[6]
impose a positive obligation on the police to ensure the safety and
security and protect the members of the public in general and
women
and children in particular from violent crime.
[7]
That
the appellant did not seek police help more aggressively and even her
unwillingness to lay charges against the deceased did
not detract
from that obligation.
[25]
The remarks of this court in an analogous case,
Minister
of Safety and Security v Van Duivenboden
,
[8]
are
instructive. There, the court said:
[9]
‘
Simply
from the events that occurred on 27 September 1994 [when the
plaintiff approached the police and reported that she feared
her
husband but expressed an unwillingness to lay charges as to do so
would jeopardize her marriage and merely asked them to confiscate
his
firearms] it was known to a number of police officers, more than a
year before [the plaintiff] was shot, that while he was
in a drunken
state Brooks had threatened to shoot himself and any person who
attempted to intervene, including the police. That
by itself
warranted Brooks being declared unfit to possess firearms for a
period of not less than two years. All that was required
for the
requisite procedure to be commenced was for any one of the police
officers to reduce that information to writing under
oath and to
forward the statement to the person responsible for holding such
enquiries. There was no proper explanation in the
evidence for why
that was never done … [W]hy none of those police officers took
any steps … to initiate any enquiry,
was not explained. It is
that omission that lies at the heart of the respondent’s
claim’.
Here,
the police contented themselves, initially, simply with attempting to
broker peace between the appellant and the deceased
and, on the
second occasion, merely advised her of her options without even
bothering to take a proper statement from her, in clear
dereliction
of their duties.
[26]
As mentioned above, one of the police witnesses, Warrant Officer
Mnyatheli, testified that the police were
unaware of the protection
order (and its contents which would have told them the grounds upon
which it was issued) until the institution
of the action. Curiously
though, the station’s Domestic Violence Register, which formed
part of the bundle of documents admitted
at the trial as truthful
evidence of its contents in terms of the parties’ agreement at
the pre-trial conference, recorded
that the protection order had been
served at the police station on 9 March 2006, just a few days after
she reported the incident
and weeks before the shooting.
Disturbingly, Mnyatheli admitted that he had tampered with the
contents of the register by deleting
and changing various items
therein with erasing fluid, including the date on which the order was
received at the station, and falsely
recording that the ‘issuing
member’ of the document was the sheriff who obviously was not a
police official. These
shenanigans naturally cast a long shadow over
Mnyatheli’s evidence. But, even if one accepts his version that
the police
were unaware of the protection order as true, this would
not assist the defence case because according to the relevant entry
in
the register, the protection order was served at the police
station ten days before the tragedy. The only inference to be drawn
from that fact is that the police there became aware of the shooting
threats before the tragedy and did nothing to stop it in breach
of
their statutory duty.
[27]
I also find no merit in the argument that the absence of a request
for the firearm’s seizure in her
application form for a
protection order means that the appellant did not apply to have the
deceased disarmed. As the trial court
correctly pointed out, her
evidence that the official who attended her at the magistrate’s
court told her which parts of
the form to complete, and that the
relevant portion was filled in by that officer, was borne out by the
patently different handwriting
on the document and could not be
impeached. Therefore she cannot be blamed for the omission. This is
particularly so having regard
to the provisions of s 9 of the
Domestic Violence Act which the magistrate clearly ignored in light
of the appellant’s statement.
In
terms of s 9(1) thereof
‘
The
court must order a member of the South African Police Service to
seize any arm or dangerous weapon in the possession or under
the
control of a respondent, if the court is satisfied on the evidence
placed before it, including any affidavits supporting an
application
referred to in section 4 (1), that –
(
a
) the
respondent has threatened or expressed the intention to kill or
injure himself or herself, or any person in a domestic
relationship,
whether or not by means of such arm or dangerous weapon; or
(
b
)
possession of such arm or dangerous weapon is not in the best
interests of the respondent or any other person in a domestic
relationship, as a result of the respondent’s –
(i)
state of mind or mental condition;
(ii)
inclination to violence; or
(iii)
use of or dependence on intoxicating liquor or drugs.’
Clearly,
these provisions enjoined the magistrate to order the seizure of the
firearm allegedly used by the deceased to threaten
the appellant
whether or not she made that request.
[28]
Another blow to the defence version, in my opinion, is the glaring
improbability in the contention that the
appellant did not mention
the involvement of a firearm to the police and yet reported it to the
magistrate whom she approached
on the advice of the very police
shortly thereafter. And this because she could differentiate between
the two institutions and
realised that there was no risk of the
deceased’s arrest from the magistrate as alluded to above. I do
not understand the
latter submission because the business of both the
magistracy and the police service is law enforcement so the deceased
was not
safe from the reach of the law once reported to the
magistrate. In any event, its basis is far from clear as the evidence
certainly
does not support it.
[29]
Regarding the criticism levelled against the appellant’s
failure to call Vuyokazi to testify, it is
so that if a party fails
to place the evidence of a witness who is available and able to
elucidate the facts before the trial court,
this failure may lead to
an inference that she fears that such evidence will expose facts
unfavourable to her.
[10]
But
the inference will
depend
upon the facts peculiar to the case where the question arises and the
strength or weakness of the case is a relevant factor
for
consideration.
[11]
Also,
if it appears that the witness was equally available to both parties,
that inference might be drawn against both parties.
[12]
It seems to me, for all the reasons stated above, that the
probabilities strongly favour the appellant’s version. In that
case, there is no room to draw the inference sought on the
respondent’s behalf. Furthermore, the appellant’s cause
of action was founded also on the events of February 2006 which did
not involve Vuyokazi.
[30]
The requirements for a claim based on wrongful omissions of police
officers are established. The plaintiff
must prove that (a) the
police owed her or him a legal duty to act; (b) they breached that
duty and did so negligently; and (c)
there was a causal connection
between such negligent breach of the duty and the harm suffered by
the plaintiff.
[13]
The existence of a legal duty was always common cause. The only
issues that were in contention related to the requirements set
out in
(b) and (c). In my view, the appellant established them and both
negligence and wrongfulness on the part of the police were
proved.
The appeal must therefore succeed.
[31]
We were asked to award the appellant costs including the costs
occasioned consequent to the employment of
two counsel if the appeal
succeeded. However, such an award is not warranted in the
circumstances of this case even though the
matter is obviously
important to the parties. By the time the matter went on appeal both
in the full court and before us, the issues
had crystallised into the
simple factual question described above ie whether the appellant told
the police that the deceased had
pointed the firearm at her and
threatened to shoot her.
[32]
In the result the following order is made:
1
The appeal is upheld with costs.
2
The order of the Full Court is set aside and replaced with the
following:
‘
The
appeal is dismissed with costs.’
____________________
M M L MAYA
Judge of Appeal
APPEARANCES
For the
Appellant: N Dukada SC (with MN
Hinana)
Instructed
by:
Fikile Ntayiya & Associates,
Mthatha
Rampai Attorneys, Bloemfontein
For the
Respondent: P H S Zilwa SC
Instructed
by:
NS Nombambela Inc., Mthatha
The State Attorney, Bloemfontein
[1]
Indeed, her evidence that
the deceased had always been in possession of a service firearm
which he had pointed at her and that
he threatened to shoot her was
not gainsaid. And as was observed in the minority judgment, it would
have been far-fetched and
fanciful to suggest that the appellant
fabricated the deceased’s threats which he executed a mere six
weeks after she reported
him to the authorities in precisely the
same manner in which the appellant described.
[2]
West Rand Estates Ltd v
New Zealand Insurance Co Ltd
1925
AD 245
at 263;
Govan v
Skidmore
1952 (1) SA
732
(N) at 734C-D;
Jordaan
v Bloemfontein Transitional Local Authority and another
[2003] ZASCA 127; 2004 (3) SA 371 (SCA).
[3]
National Employers’
General Insurance Co Ltd v Jagers
1984
(4) SA 437
(E) at 440D-H;
Stellenbosch
Farmer’s Winery Ltd and Another v Martell et Cie and others
[2002] ZASCA 98
;
2003
(1) SA 11
(SCA) paras 5-7;
Dreyer
and another NNO v AXZS Industries (Pty) Ltd
[2005]
ZASCA 88
;
2006
(5) SA 548
(SCA) para 30.
[4]
Santam
Bpk v Biddulph
[2004]
ZASCA 11
;
2004 (5) SA 586
(SCA) para 10.
[5]
116 of 1998.
[6]
68 of 1995.
[7]
Van
Eeden v Minister of Safety and Security (Women’s Legal Centre
Trust, as Amicus Curiae)
[2002]
ZASCA 132
;
2003 (1) SA 389
(SCA) para 13;
Carmichele
v Minister of Safety and Security and another (Center for Applied
Legal Studies Intervening)
[2001]
ZACC 22
;
2001 (4) SA 938
(CC) para 62
.
[8]
Minister of Safety and
Security v Van Duivenboden
[2002]
ZASCA 79; 2002 (6) SA 431 (SCA).
[9]
At para
11.
[10]
Munster
Estates (Pty) Ltd v Killarney Hills (Pty) Ltd
1979
(1) SA 621 (A).
[11]
Titus v
Shield Insurance Co Ltd
1980
(3) SA 119
(A) at 133E-F.
[12]
Webranchek
v LK Jacobs & Co Ltd
1948
(4) SA 671
(A) at 682;
Rand
Cold Storage & Supply Co Ltd v Alligianes
1968
(2) SA 122
(T) at 123, 124.
[13]
Carmichele
,
fn 7, para 25.