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[2011] ZASCA 69
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Maimela and Another v Makhado Municipality and Another (269/10) [2011] ZASCA 69; 2011 (2) SACR 339 (SCA); 2011 (6) SA 533 (SCA) (20 May 2011)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 269/10
In the matter between:
SAMUEL MAIMELA
..................................................................................
First
Appellant
FRANCINA POPELA
...........................................................................
Second
Appellant
and
THE MAKHADO
MUNICIPALITY
.........................................................
First
Respondent
NGHAMULA WILSON NKUNA
.......................................................
Second
Respondent
Neutral citation
:
Maimela v Makhado Municipality
(269/10)
[2011] ZASCA 69
(20
May 2011)
Coram:
MPATI P,
CACHALIA and MAJIEDT JJA
Heard
23 February
2011
Delivered:
20 May
2011
Summary:
Delict –
action for damages – personal injury sustained in shooting
incident – defence of necessity – conduct
of firing shots
to avert murderous attack justified and thus not wrongful.
Delict – action for
damages – dependants’ claim – death of breadwinner
from injury sustained in shooting
incident – defence of
necessity – elements of wrongfulness and fault part of
ingredients of cause of action –
conduct of firing shots to
avert murderous attack justified and thus not wrongful.
____________________________________________________________________
ORDER
____________________________________________________________________
On appeal from:
North
Gauteng High Court (Pretoria) (Legodi J, sitting as court of first
instance):
The appeal is dismissed
with costs.
_______________________________________________________________________
JUDGMENT
____________________________________________________________________
MPATI P (CACHALIA and
MAJIEDT JJA):
[1] On 15 July 2002 the
first appellant and one Philip Davhana (Davhana), the late husband of
the second appellant, were struck
by live ammunition fired by the
second respondent from a semi-automatic pistol. The first appellant
survived the shooting while
Davhana died from the injuries he had
sustained. The appellants subsequently instituted action against the
respondents, in the
North Gauteng High Court, Pretoria, for damages
suffered as a result of the injuries sustained (in the case of the
first appellant)
and the death of Davhana (in the case of the second
appellant). At the time of the shooting the second respondent was
employed
by the first respondent and the latter was sought to be held
vicariously liable for the former’s actions, it being alleged
that when he fired the shots the second respondent was acting in the
course and scope of his employment with the first respondent.
In
instituting her claims the second appellant acted in her personal
capacity and in her capacity as mother and sole guardian of
her four
minor children born of the union between her and Davhana. Her claims
were for damages for loss of support. I shall, for
convenience, refer
to the first appellant as ‘Maimela’; to him and the
second appellant collectively as ‘the
appellants’ and to
the second respondent as ‘Nkuna’.
[2] To the appellants’
claims the respondents pleaded, inter alia, that Nkuna ‘fired
shots in self- defence during an
emergency situation’. In the
pre-trial minute, however, the issue that the trial court was
required to consider was formulated
as follows:
‘
Whether,
in discharging his firearm on 15 July 2002, [Nkuna] acted in
self-defence, alternatively during a state of necessity.’
At the commencement of
the trial the court (Legodi J) ordered, by agreement between the
parties, that the matter proceed only on
the merits, the issue of
quantum standing over for later determination. After he had heard
evidence the learned judge upheld the
respondents’ alternative
defence of necessity and dismissed the claims with costs. This appeal
is with his leave.
[3] The following common
cause facts, as agreed between the parties, were recorded in the rule
37 minute:
‘
6
common cause facts
6.1
The parties have agreed that the following facts are common cause:
6.1.1
The first plaintiff and the late Mr Phillip Davhana (“Davhana”)
were at all material times members of the South
African Municipal
Workers Union
(“SAMWU”)
and employees of the first defendant.
6.1.2
The second defendant was at all material times employed by the first
defendant as its Human Resources Manager.
6.1.3
During or about late June 2002, SAMWU called a protected strike over
a wage dispute with the first defendant.
6.1.4
The protected strike commenced on or about 2 July 2002 and ended on
or about 19 July 2002.
6.1.5
On 15 July 2002 the second defendant, acting within the course and
scope of his duties, entered an area where striking workers
were
present.
6.1.6
In consequence of the second defendant entering the area where the
striking workers were present, the second defendant was
assaulted and
sustained certain injuries as set out in the expert report of Dr. du
Plessis.
6.1.7
The second defendant produced a firearm and fired several shots.
6.1.8
The firearm used by the second defendant was a 9mm parabellum calibre
CZ model semi-automatic pistol, with serial number 161036,
registered
in the second defendant’s name.
6.1.9
In consequence of the second defendant discharging his aforesaid
firearm on 15 July 2002, the first plaintiff was shot in
the face.
6.1.10
In consequence of the second defendant discharging his aforesaid
firearm on 15 July 2002, Davhana was shot in the chest and
died as a
result thereof on 15 July 2002.’
[4]
The circumstances leading up to Nkuna entering the area where the
striking workers were present, which are largely undisputed,
are
briefly these: Nkuna, who was the acting Municipal Manager of the
first respondent at the time, in addition to his normal position
as
Head of Human Resources, was approached in his office by a Captain
Sibola from the office of the Area Commissioner of Police.
She
informed him that the striking workers were throwing around trash and
intimidating members of the public. She expressed an
intention to
take action against them but said that she first wanted to discuss
the matter with him. He arranged a meeting with
all departmental
heads and sent a letter to the ‘striking committee’, a
body representing the striking workers and
through which management
communicated with the workers, inviting them to the meeting. The
letter was handed to a Mr Luus, one of
the first respondent’s
chief traffic officers, to deliver to the chairman of the striking
committee, Mr James Sekware. When
Mr Luus failed to return another
official, Mr Peter Mulaya (Mulaya),
1
who was both
spokesperson for management and secretary of the South African
Municipal Workers Union (SAMWU), was dispatched to ascertain
what was
happening. When Mulaya also did not return Nkuna requested a
co-manager, Mr Peter Mawgala (Mawgala), to accompany him
to where the
striking workers were. His intention was to ask the members of the
striking committee to attend the meeting.
[5] As the two proceeded
in the direction of the workers they saw Mulaya, who, until then, had
been with the workers, walk towards
them. Upon meeting them he told
them that the workers wanted to be addressed by Nkuna. According to
Nkuna, the three then walked
together towards the workers. When they
were close to them the workers encircled them. Mawgala, however,
testified that when Nkuna
and Mulaya walked towards the workers he
was talking to another person and only joined the other two when they
had already been
encircled by the workers. It appears that the crowd
was hostile towards the three officials and Mulaya tried to calm them
down
by loudly chanting the slogan ‘Viva SAMWU, Viva SAMWU’.
Mawgala said while they were standing in the middle of the crowd
he
was struck on the head by what he believed was a knob-kierie. He then
saw workers assault Nkuna with fists and knob-kieries.
He managed to
escape by running away through an opening in the crowd. While he was
running he ‘heard a sound just like a
gunshot’, after
which he saw some workers running. He jumped over a gate and observed
the scene from ‘the other side
of the gate’. From that
vantage point he saw Nkuna stand
up, his body covered with
blood. Mawgala testified further that while Nkuna was trying to stand
up he (Mawgala) ‘saw a big
stone which hit him [Nkuna] on the
head and then he fell down’. He was there attended to by a
nurse and some traffic officers.
Mawgala confirmed in cross
examination that when he and Nkuna could not get an audience with the
workers, they tried to move away
but did not manage to do so. He
disputed what was put to him by counsel for the appellants that Nkuna
fired shots before he was
assaulted. He could not say, however,
whether Nkuna was lying down or was up on his feet when he discharged
his firearm.
[6] Nkuna testified that
while Mulaya was trying to calm the workers Sekware shouted:
‘
What
are these people looking for here, who called them here, why are they
here?’ He was then struck on the head with a knob-kierie
and
thereafter assaulted by members of the crowd. They kicked and beat
him with fists until he fell to the ground. He was assaulted
continuously with knob-kieries and kicked repeatedly. When he
realized that his life was in danger he struggled to draw his firearm
and when he ultimately succeeded he cocked it and ‘fired two or
three shots without aiming anywhere’, while he was
still on the
ground. The workers scattered. He was bleeding all over and his
clothes were torn off. As he struggled to his feet
a man approached
him. At that stage he was holding his firearm by its barrel. He
thought this person was coming to assist him,
but, instead, the man
hit him on the head with what appeared to be a rock. They struggled
over the firearm, but he collapsed onto
the ground, unconscious. When
he regained consciousness he discovered that he was at Louis
Trichardt Memorial Hospital, from where
he was airlifted to Unitas
Hospital in Pretoria.
[7] When asked why he
fired the shots Nkuna replied:
‘
I
fired the shots because my life was in danger . . . they were in the
process of killing me.’
He said he fired the
shots ‘to scare them away’. He denied in cross
examination that he was assaulted after he had fired
shots and said
he only fired while he was lying on the ground and ‘being hit
by the mob’. He testified that he fired
the shots into the
ground, but when asked why one of the bullets found on the scene was
not damaged, which meant that he could
not have fired into the ground
(tarmac), he responded:
‘
When
I fired the bullets I was on the ground and there were more than 300
people trying to hit me with something at the same time
. . . As much
as I was intending to shoot at the ground . . . it might happen that
a bullet never hit the ground.’
It was put to him that
the person he said approached him after he had fired shots was a Mr
Abraham Tshirupfe, who would testify
that at that stage he (Nkuna)
had not as yet been assaulted; that he approached Tshirupfe, pointing
a firearm at him; that Tshirupfe
struggled to take the firearm from
him; that he (Nkuna) hit Tshirupfe on the head with the butt of the
firearm; that Tshirupfe
disarmed him, after which he (Nkuna) pulled a
second firearm ‘out of your sock or your shoe’, but was
disarmed of that
firearm as well. Nkuna denied all this and claimed
that he owned only one firearm.
[8] Mr Martin Tobie Luus
(Luus), an assistant manager: Traffic and Licensing at first
respondent municipality, also testified. He
was ‘about 25 to 30
yards’ from the group of striking workers when Nkuna, Mawgala
and Mulaya walked into the group.
He said he could hear that there
were hectic arguments and immediately after that the group ‘started
to club down and kick
and hit with the “knob-kieries” and
sticks, somebody’. He could not see who was being attacked. He
then heard
three shots and the crowd immediately dispersed. To his
surprise he saw Nkuna lying on the ground. He noticed that Nkuna was
without
shoes, his shirt was torn off and he was bleeding profusely.
He said as Nkuna tried to stand up he saw someone from the crowd go
towards him (Nkuna). This person picked up ‘a sizeable stone’-
the size of a rugby ball - and hit Nkuna on the head
with it. In
cross examination Luus gave the sequence of events as follows:
‘
They
went into the crowd, then arguments started, then the assault
thereafter, then the shots were fired, then the crowd dispersed.’
[9] Five witnesses
testified on behalf of the appellants, namely the first and second
appellants, Messrs Elvis Tlou, a driver employed
by the first
respondent and a member of SAMWU, Peter Masia and Tshirupfe, both
employees of the first respondent and members of
SAMWU. It is
unnecessary to set out in detail the testimony of Tshirupfe, which
was mainly in line with what was put to Nkuna in
cross-examination.
His version as to when the shots were fired was rejected by the trial
court, correctly so, in my view. The court
held that the version of
the respondents ‘is more probable than that of the appellants’.
[10] Tlou testified that
he was standing on the outside of a ‘danger tape’ with
which the area where the striking workers
were gathered was
demarcated when he saw Nkuna, Mawgala and Mulaya walk towards the
workers. He heard Sekwari when the latter asked
them where they were
going. When they were in the crowd he heard someone shouting the
words ‘viva SAMWU viva’. After
a while he heard a gunshot
and ‘people started to disperse, running’. One of the
workers approached him and reported
that another person had fallen,
pointing in a particular direction. He followed the direction pointed
to him and found Davhana.
Another person told him about someone else
who was bleeding. He ascertained thereafter that the person who was
bleeding was the
first appellant. He then conveyed his two injured
colleagues to hospital in his vehicle.
[11] Masia was among the
striking workers when Nkuna, Mawgala and Mulaya walked into the
group. He said that when Mulaya shouted
the words ‘viva, viva’
and ‘down with the destruction of municipality properties and
littering’ the crowd
screamed at him. A lady drew his attention
to Nkuna who had a firearm in his hand. While the crowd was still
screaming at Mulaya
he heard a gunshot. Masia’s testimony
proceeded as follows:
‘
[W]hen
I heard, when we heard a gunshot, we then dispersed, we started to
run.’
And:
‘
While
we were still running we heard another two gunshots, now, from the
first one, another two, then there were three now’.
According to him he saw
that Nkuna was pointing the firearm at the dispersing crowd when he
fired the last two shots. On what transpired
after the shots were
fired Masia supported Tshirupfe’s testimony. On his version
Nkuna fired the shots for no reason whatsoever.
However, the court a
quo rejected his version that he saw Nkuna with a firearm in his hand
while in the crowd. It held that it
was improbable that Nkuna ‘could
have approached the strikers, entered the area of picketing, stood in
the middle of them
and then held a firearm in his hand’. I
agree.
[12] The second
appellant’s testimony related to her customary union with
Davhana. Her evidence that she was married to him
by customary union
and that four minor children were born of that union was not
challenged.
[13] The first appellant
testified that he never saw the three officials when they walked into
the crowd of striking workers because,
although he had been part of
the crowd, he had gone to the toilet. When he walked back towards the
crowd he was shot on the side
of his mouth. The bullet penetrated his
left cheek and appears to have damaged his eyesight.
[14] Counsel for the
appellants did not seek to persuade us to disturb the factual
findings made by the trial court. Indeed, counsel’s
argument
proceeded on the assumption that this court will not overturn the
trial court’s finding that Nkuna was the victim
of an attack
before he fired the shots. There is, however, one aspect of the
judgment of the court a quo that requires attention.
It relates to
the court’s reasoning in rejecting Masia’s evidence that
Nkuna was assaulted after he had fired shots.
The court reasoned that
because Masia could not see Nkuna in the crowd as he was
concentrating on Mulaya and the crowd, and because,
according to him,
the crowd dispersed and ran away after the first shot, Masia ‘cannot
say whether Nkuna was assaulted before
the first shot was fired’.
The learned judge assumed that Masia also ran away after the first
shot and concluded that he
could therefore not have seen Nkuna firing
a gun while he was amongst several hundred people who were running
away. I raise this
because counsel for the appellants submitted that
the court below appeared to have accepted that after the first shot
had been
fired the crowd immediately dispersed. This is incorrect. It
was Masia who had testified that the crowd dispersed after the first
shot. And he was the only one to give that evidence. Tshirupfe
testified that after the three officials had entered the crowd he
heard three gun shots ‘[w]ithin the twinkle of an eye’
and then people started to disperse. In a statement he deposed
to
before a police captain in Louis Trichardt on 17 July 2002, Nkuna
stated that he fired a shot into the ground and saw that the
crowd
was still around. He then fired another shot into the ground. I
accordingly disagree with counsel’s contention that,
even if it
cannot be said that the trial court made a specific finding that the
crowd dispersed after the first shot had been fired,
the evidence and
the probabilities support such a conclusion. In fact, the opposite
appears to be true, in my view.
[15] As has been
mentioned above, the court below was called upon to consider the
respondents’ plea of self-defence, alternatively
necessity, in
relation to the facts of the case. It decided to consider the
alternative plea of necessity, reasoning that ‘for
the purpose
of these proceedings it does not matter whether the defence of
self-defence is proved or not if the defence of necessity
is found to
be justified’. The court found that the actions of Nkuna in
firing the shots he did were justified.
[16] In view of the
conclusion reached by the court a quo and the arguments on behalf of
the appellants, with which I agree, that
in the absence of any
evidence to show that Davhana and Maimela participated in the assault
the defence of self-defence was not
available to Nkuna, I do not
propose to embark on an elaborate exposition on the differences
between the defences of self-defence
and necessity. It suffices to
say that necessity, unlike self-defence, does not require the
defendant’s action to have been
directed at the perpetrator of
an unlawful attack. It is invoked where the action, or conduct, of
the defendant was ‘directed
against an innocent person for the
purpose of protecting an interest of the actor or a third party
(including the innocent person)
against a dangerous
situation’.
2
And whether or not
the defendant’s conduct would be covered by the defence of
necessity will depend on all the circumstances
of the case.
[17]
Professor Jonathan Burchell
3
suggests that for
an act to be justified on the ground of necessity the following
requirements must be satisfied:
‘
(
a
)
[A]
legal interest of the defendant must have been endangered, (b) by a
threat which had commenced or was imminent but which was
(c) not
caused by the defendant’s fault, and, in addition, it must have
been (d) necessary for the defendant to avert the
danger, and (e) the
means used for this purpose must have been reasonable in the
circumstances.’
The crux of counsel’s
argument was that the respondents failed to show that it was
reasonable for Nkuna to have fired shots
in the direction of Maimela
and Davhana, particularly the shots that struck them. It was
therefore submitted that the last element
of the requirements as
formulated by Professor Burchell was not established, because it was
not reasonable for Nkuna to have fired
randomly in the direction of
the crowd, most of whom were not participating in the attack upon
him. Counsel’s further contention
was that even if it was
reasonable for Nkuna to have fired randomly into the crowd it was not
reasonable for him to have continued
firing after the first shot.
[18]
It may well be that Davhana was not participating in the attack upon
Nkuna when he was struck by a bullet – Maimela’s
testimony that he was not has to be accepted in the absence of
evidence to the contrary – hence the defence of necessity.
But
to escape liability for Nkuna’s actions the respondents were
not required to establish that Maimela and Davhana were
part of the
attacking crowd.
4
It could not be
argued in this case, in my view, that it was not necessary for Nkuna
to avert the murderous attack upon him by members
of the crowd. It is
not in dispute that while he was lying on the ground, helpless, after
he had been struck by a knob-kierie and
felled by fist blows and
kicks, Nkuna was assaulted so severely that when the assault stopped
he was bleeding profusely barely
with any clothes left on his body. I
agree with the view of the court below that had he not fired the
shots Nkuna would, in all
probability, have been killed.
[19]
It was not suggested before us that it was not reasonable for Nkuna
to have averted the danger of being killed by a murderous
crowd by
firing shots with his firearm. Nor was it argued that the use of his
firearm by Nkuna was not the only reasonably possible
means of
averting the danger.
5
In these
circumstances, I fail to see how it could be argued that it was not
reasonable for him to have fired randomly in the direction
of the
crowd, if indeed he did, when people in that very crowd were
perpetrating the murderous attack on him. It may well be, and
in all
probability is so, that most of the crowd were not close enough to
physically participate in the assault. But it is precisely
these
situations that the defence of necessity seeks to cover.
[20]
Counsel for the appellant submitted, however, that a court should be
extremely hesitant to accept, without the most compelling
evidence
and circumstances, that it is lawful to kill an innocent person. In
this regard, counsel contended, due regard must be
had to ‘the
right to life’ of the innocent victim as provided for in s 11
of the Constitution. This is so, but, as
was stated by the
Constitutional Court, ‘[t]o deny the innocent person the right
to act in self-defence would be to deny
to that individual his or her
right to life’.
6
The same is true
where an innocent person acts in circumstances of necessity. Thus,
where a defendant is able to show that his conduct
in causing the
death of an innocent person was objectively reasonable in the
particular circumstances, he will be exonerated. Of
course, in
determining whether the conduct of the defendant was reasonable a
court will consider questions of proportionality.
As was said in
Crown
Chickens
7
,
‘the greater the harm that was threatened, and the fewer the
options available to prevent it, the greater the risk that
a
reasonable person would be justified in taking, and
vice
versa
’
.
I have mentioned above that the crowd perpetrated a murderous attack
on Nkuna. In my view, there can be no greater harm than a
threat to
one’s life.
[21] Admittedly, there
were apparent inconsistencies in Nkuna’s evidence. He testified
in chief that when he was being assaulted
while on the ground he was
covering his head; he struggled to reach for his pistol and struggled
to cock it. He said that while
he was on the ground he fired two or
three shots without aiming anywhere. When he was confronted in cross
examination with the
contents of his police statement in which he
stated that all the shots he fired were ‘pointed on the tar’,
he confirmed
what he said in his statement as being correct. He was
then referred to the appellants’ expert notice in respect of
the evidence
that would be tendered by a ballistics expert, to the
effect that a 9mm calibre undamaged fired bullet found near the scene
had
no markings, which indicated that the bullet had not ricocheted
off a tarred surface. To this he responded that as much as he was
‘intending to shoot at the ground’, it ‘might
happen that a bullet never hit the ground’. Elsewhere in
his
testimony he said that he never intended to kill anyone, but rather
wanted to ward off his attackers. Counsel accordingly submitted
that
if, as Nkuna impliedly conceded, the circumstances were such that he
thought it appropriate to try to ward off his attackers
rather than
to kill them that showed that it was not objectively reasonable for
him to simply shoot into the crowd. The prospect
that his shooting
would cause death or injury to innocent third parties was
overwhelming, so the argument continued. The alternative,
said
counsel, was to fire in the air once, twice or thrice, or into the
tarmac, or once into the crowd. But I think the stance
adopted by
counsel is that of an arm-chair critic.
[22] First, the
postulated alternatives were never canvassed with Nkuna during the
trial. Second, his evidence, which was accepted
by the trial court,
was that when he fired the shots he was on the ground with members of
the crowd assaulting him while he was
trying to cover his head. In my
view, it would be unreasonable to have expected him, in these
circumstances, to have looked up
and carefully observed whether he
could fire a warning shot. In light of the evidence it is hardly
surprising that, even though
he may have intended to fire into the
ground as he thought he had done, he may not have.
[23] Lastly, counsel
submitted that the respondents did not show how many shots were fired
and that the respondents have not excluded
as a reasonable
possibility that five shots were fired. The question that has to be
answered, counsel contended, was whether, if
the object was to ward
off the attackers (and not to kill any of them), it was reasonable to
have fired as many times. In my view,
a reference to the evidence
will answer this question. It is true that in his statement to the
police Luus said that five shots
were fired. However, during his
evidence at the trial he testified that only three shots were fired.
Nkuna said he fired two or
three shots. He said: ‘then I fired
those shots to scare them away . . . And then they have scattered’.
Masia, the
appellants’ own witness, confirmed this. The
difference between his version on this aspect and that of Nkuna was
that he
testified that the crowd dispersed after the first shot. That
part of his evidence was rejected by the court below. In my view,
Nkuna’s conduct was objectively reasonable and his defence of
necessity was thus correctly upheld by the court a quo.
[24] As to the second
appellant’s claim in her representative capacity, counsel
submitted that even if it should be found
that Nkuna acted
reasonably, there was still a valid dependant’s claim. Counsel
derived support for his argument from the
following passage in
Professor Burchell’s work:
‘
However,
if an innocent person has been killed by another under compulsion, no
conflict with the existing law in South Africa would
result if the
deceased’s dependants were able to sue the killer for damages
for loss of support. As we have seen, the dependants
sue in their own
right and the fact that the killer’s conduct might be justified
by compulsion (i.e. lawful) vis-à-vis
the innocent victim does
not impair the right of the dependants of the victim to recover
damages for loss of support from the person
who has deprived them of
this support. The deprivation of support remains unlawful even though
the killing of the breadwinner is
lawful.’
8
To the
extent that this passage suggests that no wrongful act on the part of
the defendant need be proved in a dependent’s
claim for loss of
support, I disagree. In the
Crown
Chickens
case
Nugent JA said the following:
‘
But,
while it is clear that there is no liability for harmful conduct that
occurs in circumstances of necessity, and that the standard
for
assessing the conduct is objective, it has yet to be authoritatively
determined where necessity fits in the jurisprudential
scheme
of
delictual
liability.
The
weight of academic opinion is that necessity operates to justify
conduct that would otherwise be wrongful, thus taking it outside
the
class of conduct that is susceptible to an action for damages, a view
that seems largely to draw upon analogous principles
that have been
developed in criminal law. On the other hand, it also seems at times
to have been suggested that it might operate
instead to avoid a
finding of negligence
.’
9
[25] The basic
ingredients of a claimant’s cause of action in a claim for
damages for loss of support were summarized by Corbett
JA as follows
in
Evins v Shield Insurance
Co Ltd
1980 (2) SA 814
(A)
at 839B-C:
‘
(a)
[A] wrongful act by the defendant causing the death of the deceased,
(b) concomitant
culpa
(or
dolus
)
on
the part of the defendant, (c) a legal right to be supported by the
deceased, vested in the plaintiff prior to the death of the
deceased,
and (d)
damnum
,
in the sense of a real deprivation of anticipated support.’
Thus, questions of
wrongfulness and fault come into the picture, as they do in Maimela’s
claim based on the bodily injury
he sustained. And, as the learned
Judge of Appeal continued, the
facta probanda
would relate to
these matters (the basic ingredients) and ‘no cause of action
would arise until they had all occurred’.
Put simply, without a
wrongful act there can be no cause of action for loss of support. It
follows that the dependents’ claim
brought by the second
appellant on behalf of Davhana’s minor children could not
succeed.
[26] The appeal is
dismissed with costs.
____________________
L Mpati
President
APPEARANCES
APPELLANTS: A J Freund SC
Instructed by Cheadle
Thompson & Haysom, Pretoria;
McIntyre & van der
Post., Bloemfontein
RESPONDENT: M J Botha
Instructed by Klagsbrun
De Vries & Van Deventer, Pretoria;
Honey Attorneys,
Bloemfontein
1
The
record gives two other variations of the spelling of the surname:
‘Molaia’ and ‘Mwule’.
2
Crown
Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck
2007 (2) SA 118
(SCA) para 10, quoting with approval J C van der Walt and J R
Midgley
Principles of Delict
3 ed para 87.
3
Principles
of Delict
(1993) 75.
4
Petersen
v Minister of Safety and Security
[2010] 1 All SA 19
(SCA) para
11.
5
This
is one of the considerations a court must take account of in
determining the reasonableness of a defendant’s conduct.
See
Crown Chickens,
para 13, where Nugent JA quotes from Van der
Walt and Midgley
Principles of Delict
para 87.
6
S
v Makwanyana & another
[1995] ZACC 3
;
1995 (3) SA 391
(CC) para 138.
7
Para
14.
8
Principles
of Delict
, above fn 3 p77.
9
Para
11. (Footnotes omitted.)