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[2009] ZASCA 95
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Minister of Safety and Security and Another v Madyibi (643/08) [2009] ZASCA 95; 2010 (2) SA 356 (SCA) ; [2010] 1 All SA 139 (SCA) (17 September 2009)
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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case no: 643/08
THE
MINISTER OF SAFETY AND SECURITY First Appellant
XOLISA
DLAKAVU Second Appellant
and
DIDEKA
FLORENCE MADYIBI Respondent
___________________________________________________________________
Neutral citation:
Minister of Safety and Security v
Madyibi
(643/08)
[2009] ZASCA 95
(17 September 2009)
CORAM:
BRAND,
VAN HEERDEN, PONNAN, MAYA JJA
and
TSHIQI AJA
HEARD:
20 August 2009
DELIVERED:
17 September 2009
CORRECTED:
SUMMARY:
Delict â loss of support â wrongfulness â
police negligently failing to dispossess sergeant of official firearm
â sergeant
taking his own life with firearm â claim for loss of
support by dependants â wrongfulness established
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from
:
The High Court, Transkei
Division (Petse ADJP sitting as court of first instance).
The appeal is dismissed with costs, such costs to include those
consequent upon the employment of two counsel.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
VAN HEERDEN and PONNAN JJA
(BRAND and MAYA JJA, and TSHIQI
AJA concurring):
[1] On 21 January 2003, Sergeant Pumzile Madyibi (the deceased), who
during his lifetime was the husband of the respondent, Dideka
Florence Madyibi, shot and injured the latter and thereafter took his
own life with a state issue firearm that had been allocated
to him as
a member of the South African Police Service for use even when not on
duty. Pursuant to the shooting, Ms Madyibi instituted
action, both in
her personal capacity as also on behalf of the four minor children
born of her union with the deceased, against
the Minister of Safety
and Security and Superintendent Xolisa Dlakavu, the station
commissioner of the station to which the deceased
had been attached
(the first and second appellants, respectively, in this court).
1
[2] In her summons Ms Madyibi alleged that the shooting and
commission of suicide by the deceased were caused by the negligence
of Dlakavu and/or other policemen in that he and/or they had failed
to dispossess the deceased of his official firearm, despite
having
become aware, over a protracted period of time, that the deceased was
unfit to possess a firearm inasmuch as:
(i) he had previously repeatedly threatened to shoot Ms Madyibi, had
pointed a firearm at her and had threatened violence towards
her and
other members of the SAPS;
(ii) Dlakuvu and/or other policemen knew that the marriage
relationship between the deceased and her had significantly
deteriorated,
that the family life of the deceased was anything but
stable, and that the deceased had manifested suicidal tendencies.
Moreover, so the summons alleged, he and/or other policemen had
failed to take steps to protect Ms Madyibi from being injured by
the
deceased when they could and should have done so, or to report the
violent conduct of the deceased to their superiors within
the SAPS.
Accordingly, so it continued, Dlakavu and other policemen, who should
have foreseen the deceasedâs wrongful conduct
and the consequent
loss, had a legal duty to protect her and the minor children, which
they had breached.
[3] Even though the claims were initially disputed, at the conclusion
of a trial which lasted several days before Petse ADJP in
the Mthatha
High Court, the typed transcript of the proceedings records:
'
MR
MBENENGE [Counsel for the Appellants]
: .
. . .Having dealt with that portion of the claim in so far as it
relates to the alleged negligence, which is as I have pointed
out,
now no longer in dispute, then the defendants accordingly concede
Claim A, if I may remind Your Lordship, Claim A relates
to general
damages that are said to have been suffered by the plaintiff
consequent upon the shooting incident.
COURT
: Yes.
MR MBENENGE
: So
Claim A in its entirety is no longer being resisted. Then for now
Your Lordship should allow us to say nothing about Claim
B, Claim C
in so far as it relates to the plaintiff suing in her representative
capacity, is also being conceded. Let me say that
again, M'Lord.
COURT
: Conceded?
MR MBENENGE
: Yes
COURT
: Thank
you.
MR MBENENGE
: In
other words plaintiff's claim for loss of support, her personal claim
for loss of support is not conceded, [what] is being
conceded is the
claim brought by the plaintiff for and on behalf of the minor
children . . . So much for Claim C. Then, M'Lord,
flowing from that
is the fact that the defendants made no concession with regard to the
plaintiff's . . . Claim B. Then finally
the defendants do not dispute
being liable for costs of suit hitherto or up to and including today,
that is costs of the hearing,
the liability aspect.'
Later, and in order to further clarify the position Mr Mbenenge
stated:
'Your Lordship will realise that
what the defendants were doing in fact, was to place on record that
which is not being resisted
anymore. Less â it was less of making
an offer to the plaintiff as seems to have been understood, so the
understanding really
is that we stand up to record what it is that is
no longer being resisted.'
On the day that the matter was argued, counsel for the appellants
informed the trial court that the appellants also admitted liability
for Ms Madyibiâs claim for loss of support in her personal
capacity. Thus all that remained of the
lis
between the
parties was Claim B, being Ms Madyibi's claim for loss of income and
her impairment of earning incapacity.
[4] After taking some time to consider the matter, Petse ADJP handed
down a fully reasoned judgment in which he issued the following
order:
'1 The First Defendant [the
Minister of Safety and Security] is held liable to compensate the
Plaintiff [Ms Madyibi] both in her
personal and representative
capacities for such damages as the Plaintiff may prove to have
suffered in respect of the following:
1.1 pain and suffering, loss of
amenities of life, past and future medical and hospital expenses;
1.2 loss of support;
1.3 loss of earning capacity.
2 The First Defendant shall . .
. pay all the costs of suit incurred to date of this order.'
[5] Thereafter, as the learned judge in the court below put it
â
'To my utter amazement ..., it came to my attention that the
defendants had filed an application for leave to appeal against part
of my judgment'. Petse ADJP nevertheless ultimately granted leave to
the appellants to appeal to this court against that part of
his
judgment relating to Ms Madyibi's claim for loss of support, both in
her personal as also in her representative capacities.
[6] In persuading the court below to grant leave, the submission was
that the issues of negligence and wrongfulness had in error
been
conflated by counsel on behalf of the appellants. Accordingly, so the
submission went, the element of wrongfulness not having
been proved
by Ms Madyibi, the court below ought not to have found in her favour.
[7] On appeal it was argued that the distinction between negligence
and wrongfulness had clearly been overlooked by the court below,
with
the result that those issues had been conflated. Accordingly, so the
argument proceeded, the concessions that had been made
by counsel
pertained only to negligence and did not embrace wrongfulness. In the
result, there remained a live issue for determination
by the court
below, as also before us on appeal. All of that we shall assume,
without deciding, in favour of the appellants.
[8] As best as we can discern the appellants' case, it is that the
present matter is indistinguishable from that of
Brooks v Minister
of Safety and Security
2009 (2) SA 94
(SCA). In our view,
however, counsel's reliance on
Brooks
is entirely misplaced
for the following reasons. First, in this case the deceased died by
his own hand, unlike the breadwinner
in
Brooks
who was very
much alive but had been rendered unable to support his dependant as a
result of his incarceration in consequence of
the law having taken
its course. Second, suicide is not a crime, while the breadwinner in
Brooks
had, on the other hand, rendered himself incapable of
supporting his dependant by perpetrating a most heinous crime. There
were
thus strong policy reasons in that case that militated against
recognising a claim there. Third, in
Brooks
a basic ingredient
for the dependant's action, namely the death of the breadwinner, was
absent. Fourth, at the risk of stating
the obvious, for as long as
the breadwinner was alive, conduct, even were it to have been found
to be wrongful, would only have
been wrongful
vis-à-vis
the breadwinner and not the dependant â thus, for as long as the
breadwinner had a right of action, there could also not have
existed
a separate and independent right of action in the dependant for loss
of support.
[9] It follows that, given the admittedly negligent conduct one
encounters here, the appeal must fail: in our view, the conduct
complained of was plainly wrongful and considerations of public or
legal policy consistent with our constitutional norms would
certainly
demand the imposition of a legal duty in a matter such as this (see,
for example,
Trustees, Two Oceans Aquarium Trust
v Kantey &
Templer (Pty) Ltd
2006 (3) SA 138
(SCA) para 10;
Steenkamp NO
v Provincial Tender Board, Eastern Cape
2007 (3) SA 121
(CC)
paras 39 and 41).
[10] In the result the appeal is dismissed with costs, such costs to
include those consequent upon the employment of two counsel.
_________________
B J VAN HEERDEN
JUDGE OF APPEAL
_________________
V N PONNAN
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: S M Mbenenge SC
P
h s zilwa
Instructed
by:
The
State Attorney
c/o
Jolwana Mgidlana Inc.
Mthatha
The
State Attorney
Bloemfontein
For
Respondent: N Dukada SC
M
n Hinana
Instructed
by:
V
V Msindo and Associates
Mthatha
Ponoane
Attorneys
Bloemfontein
1
By the time the appeal came to be heard, Ms
Madyibi had regrettably passed away. By then, one of her children
had obtained majority
and, by virtue of an order of the Mthatha High
Court, a certain Nombeko Elizabeth Gwadiso was substituted for Ms
Madyibi to prosecute
the claim on behalf of the remaining three
minor children in these proceedings. Nangamso Madyibi, the major
son, was in terms
of this order substituted for Ms Madyibi in
respect of âhis part of the claim for loss of supportâ. Nothing
however turns
on that and before us no opposition was raised to the
substitution.