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[2008] ZASCA 141
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Brooks v Minister of Safety and Security (036/08) [2008] ZASCA 141; 2009 (2) SA 94 (SCA) ; [2009] 2 All SA 17 (SCA) (27 November 2008)
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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case no: 036/08
AARON
JONATHAN BROOKS Appellant
and
THE
MINISTER OF SAFETY AND SECURITY Respondent
___________________________________________________________________
Neutral citation:
Brooks v Minister of Safety and Security
(036/08)
[2008] ZASCA 141
(27 November 2008)
CORAM:
MPATI
P, FARLAM and PONNAN JJA, KGOMO and MHLANTLA AJJA
HEARD:
11 November 2008
DELIVERED:
27
November 2008
Summary: Delict –
liability of State - for loss of support in consequence of the
incarceration of the breadwinner
_________________________________________________________________________
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from
:
The High Court (Cape
Town) (HJ Erasmus J sitting as court of first instance).
The appeal is dismissed with costs, including those consequent upon
the employment of two counsel.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
PONNAN JA
(Mpati P, Farlam JA, Kgomo and Mhlantla AJJA
concurring):
[1] This appeal has its genesis in events that formed the subject
matter of
Minister of Safety and Security v
Van Duivenboden
2002 (6) SA 431
(SCA). T
hose events, which are offered as no more than a
backdrop and which require no elaboration at this stage, were
succinctly set out
by Nugent JA (para 1) as follows:
'Neil
Brooks, who lived in Bothasig on the Cape Peninsula with his wife,
Dawn, and their two children, Nicole and Aaron, was fond
of firearms.
He owned a 9mm pistol and .38 revolver, both of which he was licensed
to possess in terms of s 3(1) of the Arms and
Ammunition Act 75 of
1969. Brooks was also fond of alcohol, which he habitually consumed
to excess. When under its influence he
was inclined to become
aggressive and to abuse his family. On 21 October 1995 these various
aspects of his life combined into tragedy.
During the late afternoon,
after Brooks had been drinking at the family home, a domestic
squabble erupted. Brooks loaded both his
firearms, placed a holster
and more ammunition around his waist, and confronted Dawn, who was
then in the garage with the children.
Brooks pointed the cocked
pistol at her, but she repeatedly pushed it away, and then he shot
her. Although she was injured Dawn
managed to escape from the garage
with Aaron and they sought refuge across the road on the property of
the respondent [Van Duivenboden].
Brooks then turned on
eleven-year-old Nicole, who remained trapped in the garage, and he
shot and killed her before following after
Dawn. Meanwhile, Aaron,
who was in possession of Dawn’s revolver, had called on the
respondent for assistance and had handed
to him the revolver. The
respondent and his father went into the street to investigate, where
they encountered Brooks who began
firing at them and at other
neighbours who had come to investigate, with both firearms. A bullet
struck the respondent in the ankle
as he attempted to flee and he
collapsed on the ground. Brooks found Dawn hiding in the respondent’s
garage and he shot her
repeatedly until she was dead. He then
returned to where the respondent had collapsed and shot him in the
shoulder before the respondent
managed to ward him off by firing with
Dawn’s revolver. Ultimately the police arrived and Brooks was
arrested. He is now
serving a long term of imprisonment for the
crimes he committed that day.'
[2] The appellant is Aaron, the son of Neil Brooks. His grievance
would appear to lie against his father, but like Mr
Van
Duivenboden, he
has chosen
instead to sue the State, represented by the respondent (the Minister
of Safety and Security) for the recovery of damages.
The basis of
this claim, once again like that of
Van
Duivenboden,
is that the police were negligent in failing to
take the steps available to them in law to deprive Brooks of his
firearms. Had that
been done, so it is postulated, the tragedy would
not have occurred.
[3] The particulars of claim allege:
'As a consequence of the
shooting incident as aforesaid, the said Brooks was charged and
convicted of various offences, including
murder, as a result of which
he was given a sentence of 20 years of imprisonment, which he still
serves.
As a result thereof he has been
rendered permanently unable to support Plaintiff as he would
otherwise have done.'
[4] Of the total amount claimed by the plaintiff, R168 000 lies in
respect of 'loss of support from his father' and R2 400 000
in
respect of 'loss of a proper education opportunity as a result of
loss of support'. That portion of the plaintiff's particulars
of
claim was met with an exception. Of the five grounds initially
raised, the following three – without the remaining two
having
been specifically abandoned – were advanced in the court below:
first, that no delict had been committed against the
appellant’s
breadwinner; second,
the respondent’s servants did not
act wrongfully; and, third,
there was no causal nexus between
the omission complained of and the loss suffered. The second ground
was upheld by H J Erasmus
J in the High Court (Cape Town), who issued
the following order:
‘
1 The exception to the
plaintiff’s claim for loss of support and for loss of an
education opportunity arising from the incarceration
of his father,
Neil Brooks, is upheld with costs, including the costs occasioned by
the employment of two counsel.
2 The plaintiff is given leave,
if so advised, to file amended particulars of claim within one
month.’
The judgment is reported as
Brooks v Minister of Safety and
Security
[2007] ZAWCHC 51
;
2008 (2) SA 397
(C). The present appeal is with the
leave of the court below.
[5] The exception raises the issue of wrongfulness, which is a
sine
qua non
of Aquilian liability. Negligent conduct giving rise to
damage is not per se actionable. It is only actionable if the law
recognises
it as wrongful. As Brand JA stated in
Trustees, Two
Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd
2006 (3)
SA 138
(SCA) para 10:
'Negligent
conduct manifesting itself in the form of a positive act causing
physical damage to the property or person of another
is
prima
facie
wrongful. In those cases, wrongfulness is therefore seldom
contentious. Where the element of wrongfulness becomes less
straightforward
is with reference to liability for negligent
omissions and for negligently caused pure economic loss…. In
these instances,
it is said, wrongfulness depends on the existence of
a legal duty not to act negligently. The imposition of such a legal
duty is
a matter for judicial determination involving criteria of
public or legal policy consistent with constitutional norms. ...'
Put somewhat differently: ‘The negligent causation of pure
economic loss is
prima facie
not wrongful in the delictual
sense and does not give rise to liability for damages unless policy
considerations require that the
plaintiff should be recompensed by
the defendant for the loss suffered’ (per Harms JA in
Steenkamp
NO v Provincial Tender Board, Eastern Cape
2006 (3) SA 151
(SCA)
para 1).
[6] At the outset it is necessary to investigate the nature and scope
of the action brought by the appellant. It is undoubtedly
a claim by
a dependant for loss of support. According to existing South African
law, such a claim is available to a dependant against
a person who
has unlawfully killed a breadwinner, who was legally liable to
support him/her (
Legal Insurance Company Ltd v Botes
1963 (1)
SA 608
(A) at 614B).
The nature of a dependant's
claim, in contradistinction to a damages action for bodily injuries,
was dealt with by Corbett JA in
Evins v
Shield Insurance Co Ltd
1980 (2) SA 814
(A) at 838H-839C in these terms:
‘
In the
case of an Aquilian action for damages for bodily injury . . ., the
basic ingredients of the plaintiff's cause of action
are
(a)
a wrongful act by the defendant causing bodily injury,
(b)
accompanied by fault, in the sense of
culpa
or
dolus
,
on the part of the defendant, and (c)
damnum
,
ie loss to plaintiff's patrimony, caused by the bodily injury. The
material facts which must be proved in order to enable the
plaintiff
to sue (or
facta
probanda
)
would relate to these three basic ingredients and upon the
concurrence of these facts the cause of action arises. In the usual
case of bodily injury arising from a motor accident this concurrence
would take place at the time of the accident. On the other
hand, in
the case of an action for damages for loss of support, the basic
ingredients of the plaintiff's cause of action would
be
(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. The
facta
probanda
would relate to these matters and no cause of action would arise
until they had all occurred.'
[7]
The action is
sui
generis
and, as it was put by Innes CJ in
Jameson's Minors v
Central South African Railways
1908 TS 575
at 583-4:
'Our law, while recognising no
right of action on behalf of the deceased's estate, gives to those
dependent on him a direct claim,
enforceable in their own names,
against the wrong-doer. This is a right not derived from the deceased
man or his estate, but independently
conferred upon members of his
family.'
An essential and unusual feature of the remedy, according to Corbett
JA (
Evins
at 837H-838B)
‘
... is that, while the
defendant incurs liability because he has acted wrongfully and
negligently (or with
dolus
)
towards the deceased and thereby caused the death of the deceased,
the claimant (the dependant) derives his right of action not
through
the deceased or from his estate but from the facts that he has been
injured by the death of the deceased and that the defendant
is in law
responsible therefor. Only a dependant to whom the deceased was under
a legal duty to provide maintenance and support
may sue and in such
action the dependant must establish actual patrimonial loss, accrued
and prospective, as a consequence of the
death of the breadwinner.
These principles are trite and require no citation of authority.’
[8] The scope of the action is therefore clear - it is due to third
parties who do not derive their rights through the deceased
or
his/her estate but rather from the fact that they have been injured
by the death of their breadwinner and that the defendant
is in law
responsible for such death (
Union Government (Minister of
Railways) v Lee
1927 AD 202).
Here we have been invited to extend
the common law action for damages for loss of support to a person in
the position of the appellant.
That, it has been submitted, would be
an incremental step to ensure that our common law evolves in
accordance with the norms and
values as reflected in our Constitution
and the judicial pronouncements of this court, particularly in
Van
Duivenboden.
[9
] The first ingredient
of a plaintiff's cause of action for loss of support is a wrongful
act by the defendant causing the death
of the breadwinner. To satisfy
that requirement a plaintiff is required to prove: (a) a wrongful act
by the defendant; (b) the
death of the deceased; and (c) a causal
nexus between (a) and (b).
It has been argued that the
considerations relied upon in
Van Duivenboden
in finding in
favour of the existence of a legal duty on the part of the police,
apply with equal force to this case and there
is no good reason why
that duty should not be extended to the appellant. This hypothesis,
as I shall endeavour to demonstrate,
is plainly untenable.
[10] Notwithstanding a measure of overlapping, there is a basic
difference between a claim for loss of support and that available
to
a plaintiff who has suffered bodily injury or sustained damage to
his/her property as a result of the wrongful and negligent
(or
intentional) conduct of the defendant. In the latter case the action
lies for a wrongful act committed in respect of the plaintiff's
person or property and with
culpa
(or
dolus
)
vis-à-vis
the plaintiff. The distinction, as Corbett JA pointed out in
Evins
(at 839C – G), is significant. The
facta probanda
in
a bodily injury claim differ substantially from the
facta probanda
in a claim for loss of support. Proof of bodily injury to the
plaintiff is basic to one; proof of the death of the breadwinner
is
basic to the other. Moreover, even where both claims flow from the
same incident, each cause of action may arise at a different
time.
The cause of action in respect of bodily injury will normally arise
at the time of the event giving rise to the claim, whilst
the cause
of action for loss of support will arise only upon the death of the
deceased which may occur some considerable time later.
[11] That distinction is not purely theoretical in this case. It
explains why Van Duivenboden
succeeded and the appellant must
fail. Van Duivenboden’s
claim was one for compensation
for bodily injuries sustained by him during the events giving rise to
the claim – the shooting
incident. The appellant’s claim
on the other hand is located elsewhere. It is one for loss of
support, which is alleged to
have occurred in consequence of the
incarceration of the breadwinner. But that could hardly give rise to
a claim. Plainly, the
deprivation of the breadwinner’s liberty,
which renders him incapable of supporting the appellant, is a
consequence of the
law simply having taken its course. The
breadwinner’s incarceration followed upon his arrest,
prosecution, conviction and
sentence for the crimes that he had
committed. The lengthy period of imprisonment and the consequent
deprivation of his liberty
was expressly sanctioned by law.
Notwithstanding the undoubted hardship that this must have caused the
appellant, it can hardly
give rise to an action for loss of support.
[12] It has been submitted that ‘the fact that the appellant’s
father’s capacity to support the appellant was
extinguished,
not by his death or injury, but by his incarceration, makes no
difference in principle’. In
De Vaal v Messing
1938 TPD
34
, the court was asked to extend the dependant’s action from
the case of fatal to non-fatal injuries, in circumstances where
the
breadwinner was injured in a collision and disabled to the extent of
75 per cent in his wage-earning capacity. It declined
to do so. It
reasoned that it is clear that the breadwinner would in those
circumstances be entitled as against the wrongdoer to
compensation
for the full extent of the diminution in his earning capacity and
that any claim by his dependants would thus be met
by the simple
answer that they had suffered no damage.
[13] In the present factual matrix, the claim is even more tenuous
than that encountered in
De Vaal
.
Here, the breadwinner
by his own intentional act has rendered himself incapable of
supporting his dependant. That notwithstanding,
even if one were to
assume for present purposes in the appellant’s favour, that the
conduct complained of by the servants
of the respondent is indeed
wrongful, for as long as the breadwinner is alive such conduct would
only be wrongful
vis-à-vis
the breadwinner and not the
dependant. It follows that so long as a right of action exists in a
breadwinner there cannot also be
a right of action in his/her
dependants for loss of maintenance (
Tucker's Dependants v Sub
Nigel G.M. Co.
1929 (13) PH J7 (WLD)). For, when the injured
breadwinner himself/herself has a right to obtain compensation for
the injury suffered,
the necessary proof that the dependants –
who look to their breadwinner for support and whose claim has not
been extinguished
– have suffered loss owing to that injury
cannot also be forthcoming. Quite obviously, if both the dependant
and the breadwinner
were to be entitled to recover compensation, the
person causing the injury would be liable to pay compensation twice
over in respect
of the same damage.
[14] One of the reasons advanced in
De Vaal
for refusing to
extend the common law dependant’s action to the plaintiff in
that case was that such an extension would produce
the anomaly that a
person in
De Vaal’
s position could, by his own
contributory negligence, create in favour of his dependants a cause
of action that would otherwise
not exist in the absence of such
negligence. As Greenberg J pointed out (at 39):
‘…
we would have
the extraordinary result that in the case of a non-fatal injury, the
other party’s liability to the dependants
is created by the
bread-winner’s contributory negligence; this conjures up the
picture of a trial case in which the bread-winner
in his evidence
will stoutly maintain that he too was to blame for the collision
while the defendant will be equally concerned
to convince the Court
that he alone is the culprit and that the injured was above
reproach.’
That anomaly would be exacerbated, where – as here –
there is intentional wrongdoing by the breadwinner, who by his
own
act has rendered himself incapable of supporting his dependants.
[15] Of
De Vaal v Messing
, Schreiner JA stated:
‘
... [t]hough it is not a
decision of this Court [it] furnishes support for the view that, even
in the field of dependants’
action, the law takes a
conservative view on the subject of the expansion of the Aquilian
remedy beyond what the authorities have
recognised in the past.’
(
Union Government v Ocean Accident and Guarantee Corporation Ltd
1956 (1) SA 577
(A) at 586H-587A).
[16] It is true that in matters of human behaviour we are often told
not to judge by results, but in law, when considering whether
a
contention is well-founded, the absurdity of the results to which it
will give rise is not an immaterial consideration. That
a person in
the position of Brooks could by his own intentional wrongful act
create in favour of his dependants a cause of action
that would not
otherwise exist is nothing short of preposterous; indeed in my view
that would be a dangerous proposition. After
all it is a trite
principle of our law, that a person should not be allowed to benefit
from his/her own wrongful act.
[17] Considerations of legal policy, coherence and consistency
manifestly informed the decision in
De Vaal.
And, whilst our
system of law
is
a living system, capable of adaptation to
changing circumstances, I am not satisfied that jettisoning a basic
ingredient of the
dependant’s action is warranted on the
grounds that to do so would be to keep in step with the prevailing
attitudes of society.
The remedy in its present ambit is
sui
generis
and anomalous and extending it to a person in the
position of the appellant would accentuate the anomaly as in this
case –
unlike in
De Vaal
- not even bodily injury to the
breadwinner can be shown. This court cannot give its imprimatur to
what is being sought here, as
to do so would not be to extend legal
principle but to go counter to it. It follows that the appeal must
fail.
[18] In the result the appeal is dismissed with costs, including
those consequent upon the employment of two counsel.
_________________
V M PONNAN
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: R S van Riet SC
J
H Roux SC
Instructed
by:
Heyns
and Partners Inc
Goodwood
Honey
Attorneys
Bloemfontein
For
Respondent: A Schippers SC
R
Jaga
Instructed
by:
The
State Attorney
Cape
Town
The
State Attorney
Bloemfontein