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[2014] ZASCA 51
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Minister of Safety and Security v H (374/13) [2014] ZASCA 51; 2015 (1) SACR 1 (SCA) (2 April 2014)
THE SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
NOT
REPORTABLE
Case No:
374/13
In the
matter between:
MINISTER
OF SAFETY AND
SECURIT
............................................................
APPELLANT
and
N[…]
H[…]
............................................................................................................
RESPONDENT
Neutral citation:
Minister of Safety &
Security v H[...]
(374/13)
[2014] ZASCA 51
(2 April 2014)
Coram:
Mpati P and Lewis, Mhlantla and
Saldulker JJA and Legodi AJA
Heard:
18 March 2014
Delivered:
02 April 2014
Summary
: Where there is no evidence to establish
the elements of a dependant’s action for loss of support an
order of absolution
from the instance is appropriate.
ORDER
On appeal from
: Eastern Cape High Court (Mthatha)
(Van Zyl J, Pakade ADJP and Notununu AJ sitting as the Full Court on
appeal).
1 The appeal is upheld with costs including those of two
counsel.
2 The order of the full court is set aside and replaced
with:
‘
The appeal is dismissed with costs including
those of two counsel.’
JUDGMENT
Lewis JA (Mpati P and Mhlantla and Salduker JJA and
Legodi AJA concurring):
[1] This is
an appeal against a decision of the full court in the Eastern Cape
High Court, Mthatha (Van Zyl J, Pakade ADJP and Notununu
AJ
concurring) which granted dependants’ claims for loss of
support brought by the respondent, Mrs N[…] H[…],
for
herself and her minor children against the appellant, the Minister of
Safety and Security. I shall refer to the appellant,
for the
sake of convenience, as ‘the police’, whom the Minister
was representing. The trial court (Griffiths J, in
the same division)
had granted absolution from the instance in respect of the claim for
loss of support as there was no evidence
to support Mrs H[…]’s
claim that the police were legally responsible for the death of her
husband, and the father
of her children, who had committed suicide by
shooting himself with a firearm issued to him for use in the course
of his duties
as a policeman.
[2] The full
court upheld the appeal against the order of absolution from the
instance, and granted an order that the police were
liable for ‘any
proven damages’ that Mrs H[…] and her children might
have suffered as a result of Mr H[…]’s
death. The appeal
against that order is with the leave of this court.
[3] The bare
facts, which appear only from the pleadings since no evidence was led
by either party, are that on 13 February 2005
Mrs H[…]’s
husband, a policeman attached to the Central Police Station, Fort
Gale, Mthatha, shot her in the jaw and
neck, causing injuries, and
then shot and killed himself with the same firearm. The firearm
belonged to the police and had been
officially allocated to him for
use in the course of his duties as a policeman.
[4] Mrs H[…]
instituted action against the police for damages for herself arising
from her injuries, loss of support for
herself and her children as a
consequence of the death of her husband, and funeral expenses. At the
outset of the trial the court
ruled, at the request of the parties,
and in terms of rule 33(4) of the Uniform Rules of Court, that the
issues of liability and
the quantum of damages would be dealt with
separately. By consent as well, a Provincial Order (3 of 1998) for
the regulation of
state-owned firearms by members of the South
African Police Service when not on duty, was placed before the trial
court. It was
the only evidence before that court because at the
outset, counsel for Mrs H[…] indicated that in view of the
admissions
made by the police in their plea, a prima facie case for
her had been made and that the police were put on their defence.
[5] Counsel
for the police also led no evidence. As Griffiths J said, the
proceedings amounted to a ‘trial without a trial’.
The
entire matter accordingly turned on the claims made in the
particulars and on certain of the admissions made by the police
on
which Mrs H[…] relied. The pleadings are thus significant. I
shall not deal in any detail with those relating to the
injuries
caused to Mrs H[…], since liability for that claim was
admitted by the police in their plea to the particulars
of claim. But
they denied liability for her husband’s death and the ensuing
claims for loss of support. It is thus the claims
for loss of support
brought by Mrs H[…] personally and on behalf of her four
children that were in issue.
[6] Paragraph
7 of the particulars of claim alleged that the shooting of Mrs H[…]
and the commission of suicide by her husband
were caused by the
negligence of the police in that (inter alia):
‘
7.1
they failed to seize the official firearm from possession of the
deceased despite previous reports of violence made by the plaintiff
to them against the deceased;
7.2
they failed to seize the official firearm from possession of the
deceased despite previous requests to them by the Plaintiff
to do so;
7.3
they became aware that the deceased had threatened to shoot the
Plaintiff and/or manifested threats of violence towards the
Plaintiff
but failed to take steps to seize the official firearm from
possession of the deceased;
.
. .
7.6
they allowed the deceased to be in possession of an official firearm
even after working hours well knowing that the deceased
had
previously threatened to shoot the Plaintiff;
.
. .
7.8
they knew that the marriage relationship between the Plaintiff and
the deceased had significantly deteriorated and the family
life of
the deceased was not stable but failed to seize the official firearm
. . .;
7.14
they knew that the deceased had suicidal tendencies but failed to
ensure that the deceased was deprived of the possession of
the
official firearm; . . .’.
[7] In para 8
of the particulars Mrs H[…] averred that the police should
have foreseen that she would be shot and that her
husband would
commit suicide, and that they should have prevented these acts by
seizing the firearm from him. In response the police
pleaded, in
respect of paras 7 and 8 of the particulars, that they admitted only
that the shooting of Mrs H[…] was caused
by their negligent
omission, as detailed in para 7 of the particulars of claim, but they
denied liability in respect of the allegations
in paras 7.8 and 7.14,
quoted above.
[8] They
pleaded further that they ought to have foreseen the shooting of Mrs
H[…] by her husband and prevented it by taking
possession of
the firearm from him. But, they stated: ‘The rest of the
allegations made herein are denied and the plaintiff
put to the proof
thereof.’ It is thus patent that liability in respect of the
dependants’ claims was denied. Mrs H[…]’s
legal
representatives should have led evidence that established the
allegations and not relied on admissions that were not made.
[9] However,
counsel for Mrs H[…] argued before the trial court (and in
this court too) that the allegations specifically
referring to her
husband’s suicidal tendencies and violent nature were
superfluous: once it was admitted that the police
had been negligent
and had acted wrongfully in not removing Mr H[…]’s
firearm from him, that was sufficient to found
liability for the loss
of support for his dependants.
[10] Counsel
relied also on the decision of this court in
Minister of Safety
and Security & another v Madyibi
2010 (2) SA 356
(SCA) (an
appeal from a decision in the Eastern Cape High Court, Mthatha) where
it was held that the police were liable in very
similar circumstances
for the loss of support suffered as a result of the deceased’s
suicide. But in that case, not only
was liability in respect of the
dependants’ action admitted, but evidence had been led to
support the claim. Griffiths J
referred to the record of the
proceedings in
Madyibi
and pointed out that in that case the
trial court had detailed the evidence of abuse and violence by the
plaintiff’s husband,
including an episode where he had
attempted to kill both himself and the plaintiff. As Griffiths J said
of the facts in
Madyibi
: ‘As may be seen, this is a far
cry from the facts before me in the present matter’.
[11] The
trial court concluded that although the police had admitted liability
for Mrs H[…]’s injuries, thus accepting
that the
elements of the delict had been present – fault in the form of
negligence, wrongfulness and that the negligence
was the cause of the
injuries – that did not amount to an admission that there was a
causal link between their failure to
dispossess Mr H[…] of his
firearm and his death by suicide. There was also nothing to suggest
that his death had been foreseeable
and that they had been negligent
in failing to prevent it.
[12] As the
trial judge said, the question of causation was ‘complicated’
by the absence of any evidence from which
he could draw inferences as
to whether the failure to deprive Mr H[...] of his firearm resulted
in the suicide. The admission as
to negligence in respect of Mrs
H[...]’s injuries could not be stretched to include an
admission of liability for loss of
support, especially given the
specific denials of liability in this regard in the plea. The police,
said the learned judge, had
‘steered clear from any admission
which might, in any manner, be construed as an admission of any
knowledge whatsoever on
the part of the police that the deceased had
any form of suicidal ideation or tendencies’.
[13] Even the
admission of negligence on the part of the police in so far as Mrs
H[...] was concerned did not amount to an admission
that the death by
suicide of Mr H[...] was reasonably foreseeable: thus neither fault
nor causation had been shown in this regard.
The trial judge granted
absolution from the instance in respect of the dependants’
claim for loss of support, but granted
leave to appeal to the full
court.
[14] Van Zyl
J, writing for the unanimous full court, considered that the trial
court had ‘confined itself to the issue of
causation’.
That, as I have just indicated, is not correct. The trial court
considered that there was no evidence to support
the allegations of
negligence and causation – hence the consideration of whether,
on the facts known to the police from the
particulars of claim, the
suicide of Mr H[...] should have been foreseen by them, and whether
they failed to take steps to guard
against the possibility of harm.
[15] On the
basis of assumptions made by the full court and, despite the denials
in the plea, it concluded that the death of Mr
H[...] was reasonably
foreseeable; that the police’s failure to dispossess him of his
firearm was thus negligent; that it
was also wrongful given the
strictures on possession of official firearms by police officers when
off-duty and their knowledge
of his instability and lack of fitness
to possess the weapon; and that the negligent conduct was the cause
of the death leading
to the loss of support by his dependants.
[16] All the
assumptions made – for example, that suicide, in the context of
a troubled domestic relationship is foreseeable
– were pure
conjecture. From the fact that Mr H[...] had first shot his wife
before killing himself, the full court inferred
that the suicide was
predictable. It is not necessary to examine the assumptions and the
conjecture as to what the police knew,
or should have known and
should have done: they are no more than speculative assumptions. The
onus was on Mrs H[...] to prove the
facts giving rise to the Aquilian
action, from which would flow the action for loss of support, on a
balance of probabilities.
She did not even make out a prima facie
case.
[17] Finally,
it must be mentioned that Mrs H[...] applied for the condonation of
the late filing of heads of argument prepared
on her behalf. The
excuse proffered by her attorneys was that they had left the matter
to their correspondents in Bloemfontein
and had not been aware of
this court’s rules and practice directions. That is not a
justification for their conduct. It was
their responsibility to
ensure that all rules and directions were complied with. Mrs H[...]
has been badly let down by her legal
advisers. Nonetheless, the
police did not oppose the application for condonation and it was
granted at the commencement of the
appeal hearing.
[18] In the
circumstances, the appeal must be upheld, which will have the effect
that the order of the trial court is reinstated.
It is ordered that:
1 The appeal
is upheld with costs including those of two counsel.
2 The order
of the full court is set aside and replaced with:
‘
The
appeal is dismissed with costs including those of two counsel.’
C
H Lewis
Judge
of Appeal
APPEARANCES:
For the Appellant: S M
Mbenenge SC (with him A M da Silva)
Instructed
by:
The
State Attorney, East London
The
State Attorney, Bloemfontein
For the Respondent: N Dukada SC
Instructed by:
V V Msindo and Associates, Mthatha
Matsepes Inc, Bloemfontein