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[2013] ZAGPPHC 289
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Pieterse and Others v Minister of Defence and Others (6961/09) [2013] ZAGPPHC 289 (11 October 2013)
REPORTABLE
NORTH
GAUTENG HIGH COURT PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Case
no: 6961/09
DATE:11/10/2013
in
the matter between:
CHARLOTTE
PIETERSE
….........................................................................
FIRST
PLAINTIFF
JOHAN
PIETERSE
…....................................................................................
SECOND
PLAINTIFF
HENDRIK
THOMAS MULLER
PRETORIUS
................................................
THIRD
PLAINTIFF
AND
THE
MINISTER OF
DEFENCE
......................................................................
FIRST
DEFENDANT
JUNK
METALS
CC
…...................................................................................
SECOND DEFENDANT
JACOBUS
GERHARDUS VAN DER
MERWE
............................................
THIRD
DEFENDANT
JUDGMENT
BAQWA
J
[1]
This is a claim for damages for injuries suffered by the plaintiffs
as a result of an explosion that occurred on the morning
of 30 May
2007 at the premises of second and third defendants.
[2]
The first plaintiff and second defendant are husband and wife whilst
the third plaintiff is the son of first plaintiff.
[3]
First defendant is the Minister of Defence who is sued in this matter
in his capacity as such. More particularly, he is cited
on the basis
that the device which caused the explosion on 30 May 2007 was issued
by the South African Defence Force.
[4]
Second and third defendants are the owners of the business premises
situated at Plot 84, corner Rentia and Soutpan Road, Bonaccord
Pretoria where the explosion occurred.
[5]
Third defendant a member of the second defendant together with one
Annadale who is however not participating in this action.
Background
[6]
The basis of the claims by plaintiffs is the explosion of an
explosive device on 30 May 2007 which occurred at the premises
of the
second defendant. The third defendant who is a member of the second
defendant, a scrap metal dealer, was in the process
of selling scrap
metal to the plaintiffs when first plaintiff pointed out that third
defendant was in possession of material which
could cause danger to
other persons, namely, unexploded devices.
[7]
Third defendant responded by throwing a device on the ground to
demonstrate that it was safe upon which the device exploded
causing
injuries to the plaintiffs and fatally wounding Mr Zungu, one of the
third defendant's employees.
[8]
The plaintiffs allege that the device that exploded was Defence Force
equipment. There is a dispute in this regard between the
parties.
[9]
The device which exploded originated from the Mosita area, which was
previously used by the first defendant for the training
of its troops
including mortar training and training with live ammunition. This is
common cause between the parties.
[10]
It is the plaintiff’s case that the defendants were negligent
or alternatively in breach of a legal duty of care towards
the
plaintiffs by not deactivating such a device and allowing such a
device to be available to the general public. By so doing
they had
failed to ensure the safety of the public and more particularly the
plaintiffs.
[11]
The parties agreed to separate the merits and quantum in terms of
Rule 33(4) of the Uniform Rules of Court and I am called
upon to
decide the merits at this stage.
Pleadings
[12]
The first defendant raised two special pleas, the first being the
issue of non-joinder of the South African Police Service
and the
second being non- compliance with the provisions of section 3(1) of
Act 40 of 2002. The first special plea has since been
abandoned and
the second special plea was resolved by a court order in favour of
the plaintiffs.
[13]
Plaintiffs obtained a court order on 10 November 2011 declaring
plaintiffs to have complied with the provisions of Act 40 Of
2002.
[14]
On the merits, first defendant pleaded that prior to vacating the
Mosita area, first defendant caused the area to be ‘swept’
and deactivated of any explosives on 20 June 1997 and took
precautionary measures by placing warning boards in the Mosita area.
First defendant denies any legal duty of care or any breach of such
duty. Further first defendant denies any negligence, unlawful
conduct
or causal link between its conduct and damages suffered by
plaintiffs.
[15]
No appearance to defend was entered by second defendant and no
special plea was raised by the third defendant. Third defendant
simply denies any negligence, duty of care or breach of any legal
duty.
[16]
At the beginning of the trial first defendant sought to withdraw some
of the admissions regarding facts which had been agreed
to be common
cause but this was later abandoned.
Issues
to be decided
[17]
The main issues to be decided are the following:
17.1.
Whether the explosive device which caused the explosion was defence
force equipment.
17.2.
Whether first defendant had a duty to ensure the safety of the public
in relation to that device.
17.3.
Whether he was in breach of that duty.
17.4.
Whether third defendant was negligent in possession material which
could cause danger to the public and in throwing a device
to the
ground and causing an explosion.
[18]
At the beginning of the trial the plaintiffs and the first defendant
agreed facts which are common cause between them. These
were recorded
in the form of admissions which were handed into court as an exhibit.
Though third defendant had initially not been
party to this agreement
he later joined issue with the other parties and agreed to the
correctness of the common cause facts subject
to a few
qualifications.
[19]
Because of the significance of the common cause statement admitted as
exhibit "A” in this trial I set it out fully
hereunder.
19.1.
The identity and locus standi of the parties, including the identity
numbers of the plaintiffs.
19.2.
The above Honourable Court has jurisdiction to adjudicate this action
19.3.
The South African Defence Force (‘’SANDF’7)
occupied the Mosita Training Area from approximately 1968 to
1997.
19.4.
The SANDF used the Mosita Area for the training of its troops, which
included mortar training and training with live ammunition.
19.5.
The Mosita Area occupied by the SANDF is about 4750ha in extent, and
60km from the border of Botswana, in the Vryburg district
19.6.
The Mosita Area was occupied and used by two platoons, i.e Group 21
based at Vryburg and 2SA Infantry Battalion, based at
Pomfret, which
platoons also patrolled 250km of the Botswana border.
19.7.
The Mosita Area had, on the 17th of September 1968, been expropriated
by the then Minister of Agriculture in terms of Section
13(2) of
Development Trust and Land Act, no 18 of 1936, which land was made
available to the SANDF.
19.8.
The area, which was, at one time, a subject of a land restitution
claim by the Baroiong-ba-Mosita tribe, was handed back to
the
Department of Public Works (as the custodian of all state assets), on
the 13th of November 1997.
19.9.
On the 15th of October 1998 the Land Claims Court ordered that the
State shall restore the Mosita Area, being Mosita Native
Reserve 251
IN, North West Province, to the Mosita Community.
19.10.
The Mosita Area was transferred to the Mosita Communal Property
Association on the 12th of September 2008.
19.11.
On the 30th of May 2007, the plaintiffs visited the said business
premises of the second and third defendants, being traded
as a scrap
yard, to purchase dirty aluminium from second defendant.
19.12.
The first plaintiff warned the third defendant that the metal the
third defendant was showing to the first and second plaintiffs
was
explosive devices, and that such devices were dangerous, and should
not and could not be sold by the second defendant.
19.13.
The third defendant replied to say it was safe as it had been
deactivated. The third defendant threw it to the ground to
demonstrate that it was safe. The said device exploded when it hit
the ground.
19.14.The
plaintiffs were injured due to the exploding of this explosive
device.
19.15.
The third defendant, representing the second defendant, purchased the
device that exploded from Obakeng John Mongale who
together with the
third defendant collected the device that exploded together with
other material from the Mosita Area.
19.16.
The said explosive device was a prohibited firearm and may not be
possessed or licensed in accordance with the provision
of section 4
of the Firearms Control Act, Act 60 of 2000.
19.17.
The third defendant and Mr Mongale were not in possession of any
licence or permit to possess same.
19.18.
Consequently, the third defendant and Mongale were in unlawful
possession of the explosive device in contravention of section
3 of
Act 60 of 2000.
19.20.
On the 14th of February 2010, the Magistrate sitting at Pretoria
North found, in an inquest, that death of the deceased was
brought
about by an act or omission prima facie involving or amounting to an
offence on the part of third defendant.
19.21.
The minutes of a meeting held on the 12th of September 2000, as
contained in the letter dated the 13th of March 2001, and
which was
attached to the first defendant’s provisional answer to the
plaintiff’s request in terms of Rue 35(3) correctly
reflect the
events at the meeting of the 12th of September 2000.
Evidence
[20]
Among the witnesses called by plaintiffs was Mr Deon Sydney Stidwel!
who works as a consultant in the mining industry.
[21]
Mr Stidwell was previously employed as a captain in the South African
Police Services. More specifically he was employed at
the Forensic
Sciences Laboratory, Explosive Unit, Pretoria.
[22]
At the time of the incident namely, 30 May 2007 he was an Inspector
of Explosives in terms of section 2(5) of Act 26 of 1956.
[23]
He attended the premises of the second defendant as an employee of
the SAPS shortly after the incident. He inspected the premises
and
investigated the scene where the incident occurred, the items present
at the premises as well as the point of detonation and
shrapnel
present at the scene.
[24]
He instructed Inspector G.C Van Eden to photograph the scene. He also
identified several items present at the premises including
40mm and
other casings, 37mm stopper rounds, remnants of mortars, rocket
propelled grenades (RPG7), tail fins of mortars, thunder
flashes,
60mm practice mortars, illuminating mortars and 68mm rockets
including remnants of these items.
[25]
Mr Stidwell further testified that he was involved in the
investigation by the SAPS of the death of Mr Johannes Zungu who died
as a result of the explosion and submitted statements in that regard.
He was however not involved in the autopsy though he later
obtained
pieces of shrapnel retrieved from the deceased’s body.
[26]
He testified that taking into account the measurements of the point
of detonation, the marks surrounding the point of detonation,
the
shrapnel removed from the deceased, the shrapnel found at the scene,
and the intensity of detonation, he is of the opinion
that the
incident was caused by the detonation of a high explosive weapon,
probably a 40mm round of a rifle launcher. He identifies
these items
as Defence Force equipment.
[27]
Mr Stidwell describes a 40mm round as a mini grenade launched from a
launch pipe containing about 45 grams of TNT/RDX high
explosives. He
stated that whilst the 40mm round is intended to explode on impact
causing extensive damage, this may not happen
due to factors like
soft landing, mechanical failure or incorrect aiming and
manufacturing faults.
He
further described it as weapon capable of disabling or killing and
destroying any equipment in the vicinity of detonation.
[28]
In his opinion the second and/or third defendants should not have
been in possession of the said Defence Force equipment as
this is in
contravention of the Firearms Control Act 60 of 2000.
[29]
Mr Stidwell further testified how he visited the Mosita area,
accompanied by the plaintiffs attorney on 28 February 2012. He
spent
about three hours in the area which is now being used as residential
area and for cattle farming.
[30]
They had discussions with residents and herdsmen. It was clear from
their engagement that the residents were aware of the danger
in the
Mosita area and that it was previously used by the Defence Force for
training purposes. They were also aware of the existence
and dangers
of unexploded ordinance (UXOs)
[31]
On a rocky area Mr Stidwell recovered a 60mm practice mortar under a
tree. He further testified that when high explosives mortars
are
fired, most, but not all of them would explode. They searched the
area in the vicinity for more UXO’s and found various
tail fins
and some pieces and remnants of exploded mortars.
[32]
The search was conducted without any equipment for searching for
UXO’s. He is of the opinion, however, that should more
people
trained in the searching for UXO’s and using the necessary
equipment to search the Mosita area, it is more than likely
that more
UXO’s would be found.
[33]
Mr Stidwell testified that nothing would have prevented them from
entering Mosita or from removing UXO’s as the area
was like an
open veld.
[34]
He is of the view that the removal of UXO’s should be conducted
according to internationally accepted standards such
as the
International Mine Action Standards (IMAS) and Internal Standards of
the Defence Force. He commented on the evidence by
members of the
Defence Force that a one day sweeping of the ground surface of the
Mosita area by troops was woefully inadequate
for purposes of
removing UXOs.
[35]
He also testified that he did not see any boards, warning boards or
any other indications or signs, warning any person at the
area of the
existence of UXO’s.
[36]
Mr Stidwell concluded by stating that in his opinion the Mosita area
is a highly dangerous area and that there is a high probability
of
further incidents involving explosions of the UXOs in the area.
[37]
Mrs Charlotte Pieterse, the first plaintiff gave evidence for herself
and the other two plaintiffs. Her account is by and large
reflective
of the background summary given (supra) as to the circumstances
surrounding the explosion.
For
the first plaintiff, this was clearly a life changing experience not
only because her entire family was nearly wiped out but
also at a
personal level. She is now in separation from her husband and
financially she barely ekes out a living. She testifies
that her
personality has changed. Despite these unfortunate consequences she
gave testimony that was both coherent and credible.
[38]
Further testimony was presented on behalf of the plaintiffs by
Colonel Ferreira, a Senior Staff Munitions Officer, Munitions
and
Department of Defence (DOD) Explosives Manager.
[39]
According to Ferreira, once the Mosita farm was transferred to the
Mosita community it was no longer the responsibility of
the DOD. The
South African Police Service (SAPS), became the department
responsible for securing the area. DOD would however readily
avail
itself to assist in sweeping the area whenever requested to do so by
SAPS.
[40]
Colonel Fereirra had never seen records regarding any sweeping
exercise though he was aware of correspondence in that regard.
He
stated that the sweeping exercise was not conducted in terms of any
law or Standards at the time. It was the duty of the Commander
responsible for the training exercise or area to ensure that it was
performed in terms of a duty of care owed by the DOD.
[41]
He testified that the Mosita area was used by the infantry, including
the Motorised Infantry who used ammunition, small arms,
grenades,
rifle grenades and mortars for training. They also used high
explosive rounds, illuminating ammunition, smoke ammunition
and
practice ammunition during the training.
[42]
Regarding Stidwell’s testimony, he could neither deny nor
confirm the cause of the explosion stating that he could not
do so by
mere observation of photographic material.
[43]
As far as the presence of UXOs in the Mosita Area is concerned, the
evidence of Colonel Ferreira and Captain Nel by and large
corroborated that of Mr Stidwell.
[44]
Captain Nel is a Bomb Technician at the Bomb Disposal Unit, Upington.
He was acquainted with the Mosita area whilst stationed
at the SAPS
Vryburg. He had been called out to the area during the period 2002 to
2008 to destroy unexploded ordnance discovered
by the residents and
farmers.
[45]
Colonel Gaosale was the DOD member responsible for sweeping the
Mosita area in the year 2000 after it had been handed over
to the
Mosita Community. Accompanied by 83 members of the Defence Force
Colonel Gaosale who was a Major at the time, conducted
a sweeping
exercise lasting about three hours covering an area of about one and
half by three kilometres. There is no evidence
of any further
sweeping exercise thereafter.
[46]
The plaintiffs closed their case after the evidence summarised above.
First defendant did not tender any evidence and closed
its case.
Third defendant gave evidence in which he denied any negligence
regarding his purchase of military debris from private
individuals in
the Mosita area. He testified that he considered himself entitled to
deal with the material he purchased in terms
of his scrap dealer’s
licence.
[47]
He further expressed the view that it was the first defendant who
should be held vicariously liable for the negligent acts
of its
forces in either not clearing the Mosita area of unexploded ordnance
despite the knowledge that people were resident in
that area.
[48]
I proceed to deal first with the case of the third defendant. It is
common cause that on 30 May 2007, the plaintiffs visited
the second
and third defendant’s business premises which was used for
their scrap metal dealing business to purchase dirty
aluminium from
the second defendant.
[49]
It is further common cause that the first plaintiff warned third
defendant that the debris the third defendant was showing
to the
plaintiffs was explosive devices and that such devices were dangerous
material which should not be sold by third defendant.
[50]
Third defendant responded by saying that the material was safe as it
had been deactivated. He picked an item, from the debris
and threw it
on the ground to demonstrate it was safe. The explosion occurred.
Third
defendant was cross examined at length by both counsel for the
plaintiffs, Advocate Hartman and for the first respondent,
Advocate
Maritz S.C in this regard. His refrain was that he had trust in the
SANDF that they would not have left any unexploded
ordnance in an
area where people now reside.
This,
to me, is an inadequate and superficial response to try and explain a
series of actions which were reckless in the extreme.
[51]
Third respondent had no licence to trade in armaments or unexploded
ordnance. He acquired material which he simply assumed
to be safe
from a former military training ground. Third defendant was a former
member of the South African Defence Force. Even
if he had not
undergone any infantry training, he ought to have been aware of the
inherent danger in the material he acquired.
Yet he took absolutely
no steps to verify its safety be it from the DOD or the SAPS. Instead
he simply threw the ammunition to
the ground which turned out to be a
40mm round, with fatal consequences. Third defendant acted without
due care to persons around
them and this in my view amounts to gross
negligence on his part.
The
question of gross negligence has been described as follows in the
matter of Transnet Ltd T/A Portnet v Owners of the MV Stella
Tingas
and Another 2003(2)SA 473(SCA) at 480:
"Gross
negligence is not an exact concept capable of precise definition.
Despite dicta which sometimes seem to suggest the
contrary, what is
now clear, following the decision of this court in S v Van Zyi
1969(1) SA 553(A), is that it is not consciousness
of risk-taking
that distinguishes gross negligence from ordinary negligence. (See
also Philotex (Pty) Ltd and Others v Snyman and
Others; Braitex (Pty)
Ltd and Others v Snyman and Others 1998(2) SA 138 (SCA) at 143C-J.).
This must be so. If consciously taking
a risk is reasonable there
will be no negligence at all. If a person foresees the risk of harm
but acts, or fails to act, in the
unreasonable belief that he or she
will be able to avoid the danger or that for some other reason it
will not eventuate, the conduct
in question may amount to ordinary
negligence or it may amount to gross negligence (or recklessness in
the wide sense) depending
on the circumstances. (Van Zyl’s case
supra at 557A-E). If, of course, the risk of harm is foreseen and the
person in question
acts recklessly or indifferently as to whether it
ensues or not, the conduct will amount to recklessness in the narrow
sense, in
other words, dolus eventualis; but it would then exceed the
bounds of our modern-day understanding of gross negligence. On the
other hand, even in the absence of conscious risk-taking, conduct may
depart so radically from the standard of the reasonable person
as to
amount to gross negligence (Van ZyVs case supra at 559D-H). ”
[52]
Regarding the first defendant, when it took over the Mosita community
area and used it as a training ground in 1968 it introduced
a new
source of danger into an area which had been a normal residential
area. The new source of danger was in the form of UXOs
or unexploded
ordnance.
[53]
It accordingly assumed accountability to ensure that not only its
employees but also the general public would not to be exposed
to harm
as a result of that new source of danger. The first defendant cannot
simply walk away from this responsibility and point
to other persons
or departments as the accountable persons or entities. Introducing a
new source of danger creates a legal duty
for first defendant.
[54]
The danger existed from the possibility of members of the public
picking up UXOs and possessing them for whatever reason unaware
that
they could possibly explode. First defendant was clearly aware of
this danger hence the
purported
‘sweep’ of the area in 1997 which however was not proved
to have taken place.
Colonel
Gaosale confirms a "sweep’' on 11 September 2000 which
Stidwell describes as wholly inadequate. Counsel for the
plaintiffs
submits and I accept that first defendant did not act in a manner
sufficient to protect the South African public by
conducting an
inadequate "sweep” and that their omission amounts to
negligence.
Vicarious
liability
[55]
The duty that lies upon first defendant’s shoulders was
eloquently described in the case of Von Beneke v Minister of
Defence
2012(5)SA 225GNP 225 at 228 [paragraph 14-15] where my brother, Mr
Justice Tuchten pronounces as follows:
”
[14]
Section 200(2) of the Constitution provides:
‘
the
primary object of the defence force is to defend and protect the
Republic, its territorial intergrity and its people in accordance
with the constitution and principles of international law regulating
the use of force. ’
This
provision is replicated in
s2(b)
of the
Defence Act 42 of 2002
.
Section2(g) of the
Defence Act provides
that the defence force must
respect the fundamental rights and dignity of its members and the
public. One of the important fundamental
rights engaged by
s2(g)
of
the
Defence Act is
the right of everyone, enshrined in s12(1)(c) of
the Constitution, to be free of all forms of violence from either
public or private
sources.
Section 2
of the
Defence Act provides
that
the Minister of Defence, any organ of state as defined in s239 of the
Constitution, as well as all members of the Defence
force and any
auxiliary service and employees, must, in exercising any power or
performing any duty in terms of the
Defence Act, have
regard to the
principles articulated in the section.
[15]
The business of the defendant is not merely to wage war when duly
called upon to do so. No less is it the constitutionally
mandated
business of the defendant to see to it that the members of the
defence force do not use their training and access to weapons
against
their own people, and to see to it that its engines of destruction
are used only for constitutional purposes. It thus follows,
in my
view, that, at the factual level, it was certainly foreseeable by the
defendant that the people of South Africa could suffer
harm if the
weapons of the defence force at the 4th SA Infantry base at
Middelburg were not properly preserved, or deliberately
placed in the
hands of criminals. To the extent that public policy plays any part
in the present enquiry, I respectfully adopt
the reasoning in Van
Eeden at para 19: In circumstances such as the present ... there is
no other practical and effective remedy
available to the victim of
violent crime. ’ So, even if foreseeability is an issue in this
context, its existence has been
established. ”
[56]
Counsel for first defendant submits that this case should be
distinguished from the Von Beneke case as that case dealt primarily
with vicarious liability.
I
do not agree. To the extent that the victim was injured with defence
force equipment which had been stolen, the case might seem
distinguishable but in both the present case and the Beneke case,
defence force equipment had ended up in the hands of persons
who were
not members of the DOD. They used the equipment to cause harm to
members of the public. It can therefore hardly be argued
that first
defendant is not vicariously liable for the omission of defence force
members who failed to take the necessary reasonable
actions to
protect innocent civilians.
[57] The relationship between the
defence force and its employees and the public was articulated by the
SCA in Minister of Defence
v Von Benecke (115/12)
2012 ZASCA 158
(15
November 2012) [paragraph 24] as follows:
‘
The
defence force is in this statutory context, a special kind of
employer with a relationship towards its employees and the public
which requires an approach to liability for the wrongful acts of
those employees which is very different from that of an ordinary
civilian employer. Its proper functioning requires it to possess
quantities of dangerous weapons which cannot be permitted to escape
into the hands of the public and, especially, the criminal element of
the population, and it has the resources to prevent that
happening
and the powers necessary to do so. It has the duty to educate its
employees in the disciplines required to minimise that
risk. It goes
without saying that because of the enormous potential for public harm
inherent in the adequate preservation and control
of the arms the
Department (through its responsible Minister) should not in general
be able to avoid liability for wrongful acts
of commission or
omission of employees that it has appointed to carry out its duties
to preserve and control its arms, save in
cases where the court finds
that those acts are not sufficiently closely connected with the
employee’s duties to warrant
the imposition of liability on the
Department. ”
[58]
Counsel for first defendant has attempted to persuade me that there
is no causal link established between the delict of third
defendant
committed against the plaintiffs and the omissions of the defence
force in the Mosita area. I do not accept that proposition.
There is
a direct and foreseeable connection. Third defendant, acting in
collaboration with one Mongale and certain members of
the Mosita
community removed what appeared to be debris but which in fact
contained UXOs for commercial purposes. The conduct of
third
defendant was linked to the harm sufficiently closely or directly for
legal liability to ensue.
See Minister of Police v Skosana
1977(1 )SA 31(A) at 34G
[59]
First defendant was under a legal duty to protect members of the
public from harm. The SCA pronounced on this matter in the
matter of
Van Eeden v Minster of Safety and Security (Women’s Legai
Centre Trust, as amicus curiae) 2003(1) SA 389 (SCA)
at paragraph 9
the following is stated:
l’[9]Our
common law employs the element of wrongfulness (in addition to the
requirements of fault, causation and harm) to
determine liability for
delictual damages caused by an omission. The appropriate test for
determining wrongfulness has been settled
in a long line of decisions
of this Court. An omission is wrongful if the defendant is under a
legal duty to act positively to
prevent the harm suffered by the
plaintiff. The test is one of reasonableness. A defendant is under a
legal duty to act positively
to prevent harm to the plaintiff if it
is reasonable to expect of the defendant to have taken positive
measures to prevent the
harm. The court determines whether it is
reasonable to have expected of the defendant to have done so by
making a value judgment
based, inter alia, upon its perception of the
legal convictions of the community and on considerations of policy.
The question
whether a legal duty exists in a particular case is thus
a conclusion of law depending on a consideration of all the
circumstances
of the case and on the interplay of the many factors
which have to be considered.
See
the judgment of this court in Carmichele at para [7] and recent
decisions of this court in Cape Town Municipality v Bakkerud
2000(3)
SA 1049 (SCA) paras [14]-[17]; Cape Metropolitan Council v B Graham
2001(1) SA 1197(SCA) para[6]; Olitzki Propery Holdings
v State Tender
Board and Another 2001(3) SA1247(SCA) paras [11] and [31]; BOB Bank
Ltd v Ries 2002(2) SA39(SCA) para[13] and the
unreported judgment of
this court in Minister of Safety and Security v Van Duivenboden, case
no 209/2001 delivered on 22 August
2002 para[16].
Both
the first and third defendants failed to discharge this legal duty.
First defendant omitted or failed to render the Mosita
area safe or
harmless for use by members of the public. Third defendant failed to
make the necessary inquiries be it from the DOD
or SAPS regarding
unexploded ordnance from Mosita before sending his 8 ton truck to
remove it from the area.
In
the circumstances, taking into account the conspectus of facts and
the law I have come to the conclusion that the plaintiffs
have
succeeded to prove their case against all the defendants.
I
accordingly make the following order:
61.1.
It is declared that the defendants, jointly and severally, are liable
to the plaintiffs for such damages as the plaintiffs
may be able to
prove arising from the explosion that occurred on 30 May 2007.
61.2.
The issue of quantum of damages is postponed sine die.
61.3.
The defendants, jointly and severally must pay the costs of the
plaintiffs, including the costs of the expert Mr Stidwell.
Costs will
also include costs occasioned by the two special pleas pleaded by the
first defendant.
S.A.M.
BAQWA J
(JUDGE
OF THE HIGH COURT)
Counsel
for the plaintiffs: Adv N.C Hartman
Instructed
by: Vorster and Brandt Inc
Counsel
for the first respondent: Adv SJ Maritz S.C.
Adv
DM Mohlomonyane Instructed by: The State Attorney
Third
respondent appeared in person