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[2012] ZAGPPHC 175
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Ramushi v Minister of Safety and Security (6895/2002) [2012] ZAGPPHC 175 (18 August 2012)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: 6895/2002
DATE:17/08/2012
In
the matter between:
JOHANNAH
NTEBENG
RAMUSHI
.................................................................................
Plaintiff
and
THE
MINISTER OF SAFETY AND
SECURITY
..............................................................
Defendant
JUDGMENT
MAKGOKA,
J:
[1]
This
is a delictual claim. The plaintiff was shot by an off-duty police
officer on
12
March
1999, the latter using his service pistol. The officer, Velly
Smangaliso Selinda (Selinda), was admittedly in the employ of
South
African Police Service (SAPS). The Minister is sued nominally as the
political head of SAPS. The plaintiff sustained severe
injuries to
her stomach and chest. The nature and extent of those injuries are
not necessary for the present purposes, as I am
called only to
determine the issue of liability. The parties have agreed to a
separation of issues in terms of s 33(4) of the Uniform
Rules of
Court.
[2]
In her amended particulars of claim, the plaintiff had alleged the
following with respect to the police's negligence:
'5C.
Lede van Suid-Afrikaanse Pollisiediens handelende binne die aard en
omvang van hulle diensbestek het nalatigversuim om hierdie
regsplig n
ate kom, deur nie te bevind dat VS Selinda nie geskik was om 'n
dienspistool te besit, alternatiewelik in besit van
'n dienspistool
te bly nie in die besonder in die lig daarvan dat die Verweerder
bewus was, alternatiewelik redelikerwys bewus
moes gewees het dat VS
Selinda klagtes as lid van die Suid-Afrikaanse Poliesiediens teen
horn gehad het, inter alia, dat hy:
(a)
'Incautious handling of firearm' -10 April 1994;
(b)
'Negligent firing of firearm'- 25 September 1994
(c)
'Shooting incident'-30 April 1995;
(d)
'Drunk in public place and pointing of firearm' -18 December 1995'
5D.
Nieteenstaande voormelde kennis, alternatiewelik moes lede van die
Suid-Afrikaanse Polisiediens redelikerwys kennis gedra het
van
vooermelde feite, het nalatig versuim om VS Selinda se bevoegheid om
'n dienspistool te besit in te trek alternatiewelik sy
voortgesette
besit daarvan behoorlik te ondersoek.
5E.
As gevolg van voormelde versuim, was VS Selinda op 12 Maart 1999 in
besit van so 'n dienspistool, welke dienspistool gebruik
is om die
Eiserte skiet, as gevolg waarvan die Eiser skade gely het.'
[3]
It is common cause that at the time of the incident, the SAPS had
knowledge of the incidents mentioned in paragraph 5C, referred
to
above. The full particulars of those incidents, concerning the
handling or use the service pistol by Selinda, are as follows:
(a)
Incautious handling of a firearm
On
10 April 1994 he was asleep on duty while his service pistol was on
his person; he was internally charged, convicted and sentenced
to
R50.00 to be docked from his salary.
(b)
Shooting incident
On
30 April 1994 Selinda was had been posted at Union Buildings in
Pretoria, manning the entrance gate. According to his statement,
two
police officers approached him and informed him that they were
looking for a suspect who had ran away from them. They gave
him the
description of the suspect. A while later he saw a person fitting the
description given to him by the police. He asked
that person to
approach him, but the person fled. He pursued him and fired a warning
shot with his service pistol but the person
persisted in fleeing. He
later caught up with him and arrested him.
(c)
Negligent discharging of a firearm
On
25 September 1994 Selinda was trying to place a firearm in a sage
when a shot accidentally went off. No one was injured. Minimal
damage
was done to property.
(d)
Pointing a firearm
On
18 December 1995 Selinda, allegedly drunk in public, unlawfully
pointed a firearm. He was charged, convicted and sentenced to
a fine
of R3000 or five years' imprisonment of which R2000 or four months
imprisonment was suspended for five years on standard
conditions.
[4]
On the above facts, the parties stated the following questions for
determination:
(a)
Whether the alternative claim of the plaintiff in paragraphs 5A-5E of
the particulars of claim introduced by way of an amendment
on 29
September 2006 had become prescribed;
(b)
Whether the defendant had a 'duty of care' to ensure that Selinda
only remain in possession of the service pistol as long as
he was a
fit and proper person to remain in possession thereof;
(c)
Whether the defendant, having regard to the incidents referred to in
paragraph 1.9 above,
unlawfully
omitted to properly investigate Selinda's suitability to remain in
possession of the service pistol and/or to remove
the service pistol
from his possession;
(d)
Whether the defendant, having regard to the incidents referred to in
paragraph 1.9 above, was negligent in respect of the injuries
sustained by the plaintiff as a consequence of her having been shot
by Selinda;
(e)
Whether any unlawful omission on the part of the defendant is
causally linked to the shooting incident during which Selinda
shot
the plaintiff with the service pistol;
(f)
The parties agree that, should it be found that the plaintiffs
alternative claim mentioned in paragraph 2.1 supra has become
prescribed then the plaintiffs claim ought to be dismissed;
[5]
The issue of prescription mentioned in (a) above, was not referred to
at all by either counsel during oral argument. I proceed
on the
assumption that this point was abandoned.
[6]
Before I consider the specific facts of the present case, it is
useful to set out the applicable jurisprudential framework within
which such matters are considered. In order to succeed with her
claim, the plaintiff has to establish that that there was a legal
duty on the defendant's servants (the police), to dispossess Selinda
of his service pistol. If that duty is established, and the
police
are found to have negligently breached that duty, the next enquiry is
whether such negligence caused the plaintiff to suffer
harm, which
was reasonably foreseeable or not too remote. If all these are
established, the police's omission would be wrongful
and attract
liability. I consider these concepts, in turn.
The
legal duty
[7]
This duty is often referred to as 'the duty of care' (which is a
concept of English law). I will therefore use the term guardedly,
bearing in mind the remarks of Harms JA
1
(as he then was) that to formulate the issue in terms of the concept
of 'duty of care' may lead one astray. The concept of 'duty
of care'
comprises two discrete enquiries. Milner Negligence in Modern Law
(1967) at p.230 states:
The
duty of care concept in negligence operates at two levels. At one
level it is fact-based, at another it is policy-based. The
fact-based
duty of care forms part of the enquiry whether the defendant's
behaviour was negligent in the circumstances. The whole
enquiry is
governed by the foreseeability test, and 'duty of care' in this sense
is a convenient but dispensable concept. On the
other hand, the
policy-based or notional duty of care is an organic part of the tort;
it is basic to the development and growth
of negligence and
determines its scope, that is to say, the range of relationships and
interests protected by it. Here is a concept
entirely divorced from
foreseeability and governed by the policy of the law. 'Duty' in this
sense is logically antecedent to 'duty'
in the fact-determined sense.
Until the law acknowledges that a particular interest or relationship
is capable in principle of
supporting a negligence claim, enquiries
as to what was reasonably foreseeable are premature."
[8]
In Knop v Johannesburg City Council 1995 (2) SA 1 (A) Botha J A, at
27G-I, citing with approval the passage in Milner, said:
"The
existence of the legal duty to prevent loss is a conclusion of law
depending on a consideration of all the circumstances
of the case.
The general nature of the enquiry is stated in the well-known passage
in Fleming The Law of Torts 4th ed at 136, quoted
in the
Administateur, Natal case supra at 833 in fine 834A:
In
short, recognition of a duty of care is the outcome of a value
judgment, that the plaintiffs invaded interest is deemed worthy
of
legal protection against negligent interference by conduct of the
kind alleged against the defendant. In the decision whether
or not
there is a duty, many factors interplay; the hand of history, our
ideas of morals and justice, the convenience of administering
the
rule and our social ideas as to where the loss should fall. Hence,
the incidence and extent of duties are liable to adjustment
in the
light of the constant shifts and changes in community attitudes.'
The
enquiry encompasses the application of the general criterion of
reasonableness, having regard to the legal convictions of the
community as assessed by the Court..."
The
passage in Fleming's work has undergone some modification in the
eighth edition (1992, at p 139) in that the first sentence
has been
omitted and the second sentence begins: "in the decision whether
to recognise a duty in a given situation but it
is the passage in the
fourth edition which has been twice approved by the Appellate
Division and which has also recently been relied
on by the Full Bench
of the Transvaal Provincial Division in the decision in Bowley Steels
(Pty) Limited v Dalian Engineering (Pty)
Limited 1996 (2) SA 393 (T)
at 398G-H
(See
also Minister of Defence v Mkhatswa [1997] 3 All SA 376 (W) at 379 ad
fin and 380a-c).
Negligence
[9]
In Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-G the test for
negligence was stated as follows:
'For
the purposes of liability culpa arises if -
(a)
a diligens paterfamilias in the position of the defendant-
(i)
would foresee the reasonable possibility of his conduct injuring
another
in his person or property and causing him patrimonial
loss; and
(ii)
would take reasonable steps to guard against such occurrence; and
(b)
the defendant has failed to take such steps.
...
Where a diligens paterfamilias in the position of the person
concerned would take any guarding steps at all and, if so, what
steps
would be reasonable, must always depend upon the particular
circumstances of each case. No hard and fast basis can be laid
down.'
(see
the modification of this test in Mukheiber v Raath 1999 (3) SA 1065
(SCA) para 31, in light of subsequent developments).
Causation
[10]
It is settled that establishment of negligence, is not the end of the
enquiry, and liability does not necessarily follow for
the damages
suffered. For liability to arise there must be a causal nexus between
such negligence and the plaintiffs damages. Causation
represents a
dual problem on different levels of enquiry. This was authoritatively
enunciated in the leading case of Minister of
Police v Skosana 1977
(1) SA 31 (A) at 34F-H and 35A-D by Corbett JA (as he then was):
"Causation
in the law of delict gives rise to two rather distinct problems. The
first is a factual one and relates to the question
whether the
negligent act or omission in question caused or materially
contributed to ... the harm giving rise to the claim. If
it did not,
then no legal liability can arise and cadit quaestio. If it did, then
the second problem becomes relevant, viz whether
the negligent act or
omission is linked to the harm sufficient closely or directly for
legal liability to ensue or whether, as
it is said, the harm is too
remote. This basically a juridical problem in which considerations of
legal policy may play a part."
(See
also Siman & Co (Pty) Ltd v Barclays National Bank 1984 (2) SA
888 (A) at 914C-918A; Tuck Commissioner for Inland Revenue
1988 (3)
SA 819 (A) at 832F-G; and Silver v Premier, Gauteng Provincial
Government 1998 (4) SA 569 (W) at 574D-G).
[11]
In International Shipping Co. (Pty) Ltd v Bentley 1990 (1) SA 680 (A)
Corbett CJ at 700E-H restated the general principles
of causation as
follows:
"As
has previously been pointed out by this Court, in the law of delict
causation involves two distinct enquiries. The first
is a factual one
and relates to the question as to whether the defendant's wrongful
act was a cause of the plaintiffs loss. This
has been referred to as
"factual causation'. The enquiry as to factual causation is
generally conducted by applying the so-called
'but-for' test, which
is designed to determine whether a postulated cause can be identified
as a causa sine qua non of the loss
in question. In order to apply
this test one must make a hypothetical enquiry as to what probably
would have happened but for the
wrongful conduct of the defendant.
This enquiry may involve the mental elimination of the wrongful
conduct and the substitution
of a hypothetical course of lawful
conduct and the posing of the question as to whether upon such an
hypothesis plaintiffs loss
would have ensured or not. If it would in
any event have ensued, then the wrongful conduct was not a cause of
the plaintiffs loss;
aliter, if it would not so have ensued. If the
wrongful act is shown in this was not to be a causa sine qua non of
the loss suffered,
then no legal liability can arise. On the other
hand, demonstration that the wrongful act was a causa sine qua non of
the loss
does not necessarily result in legal liability. The second
enquiry then arises, viz whether the wrongful act is linked
sufficiently
closed or directly to the loss for legal liability to
ensure or whether, as it is said, the loss it too remote."
[12]
In determining the presence of legal causation, the question is
whether the negligence of the police officers was linked sufficiently
closely or directly to the loss suffered by the plaintiff for legal
liability to arise, or whether the loss is too remote. The
test
applied in such an enquiry is trite and settled: it is a flexible one
in which factors such as reasonable foreseeability,
directness, the
absence or presence of a novus actus interveniens, legal policy,
reasonability, fairness and justice all come into
consideration (see
S v Mokgethi en Andere 1990 (1) SA 32 (A) at 39D-41B; International
Shipping above, at 700E-701G; Smit v Abrahams
1994 (4) SA 1 (A);
Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747
(A) at 764I-J and 765A-B and Delphisure
Insurance Brokers v Dippenaar
2010 (5) SA 499 (SCA) para 25.
Wrongfulness
in delict
[13]
The development of wrongfulness as a criterion for determining the
boundaries of delictual liability has its basis and foundation
in
Minister van Polisie v Ewels 1975 (3) SA 590 (A). In that case the
Appellant Division found that our law had reached the stage
of
development were an omission is regarded as unlawful when the
circumstances of the case are of a nature that the legal convictions
of the community demand that the omission should be considered
wrongful.
[14]
As a general proposition, there is constitutional and public law duty
on the State to protect its citizens and the State is
liable for the
failure to perform that duty, unless it can be shown that there is
compelling reason to deviate from that principle
(see Minister of
Safety and Security v Carmichele 2004 (3) SA 305 (SCA) para 43). In
Minister of Safety and Security v Duivenboden
2002 (6) SA 431 (SCA)
paras 20 and 21 the Supreme Court of Appeal held that determining
wrongfulness in these matters involves
the balancing of identifiable
norms, which include constitutional norms. An important
constitutional norm that will factor in cases
such as these is the
norm of accountability (see also Olitziki Property Holdings v State
Tender Board and Another 2001 (3) SA 1247
(SCA) para 31). This view
has received the approval of the Constitutional Court in Rail
Commuters Action Group and Others v Transnet
Ltd t/a Metrorail and
Others 2005 (2) SA 359 (CC) paras 73-78.
[15]
Generally, accountability concerns would favour delictual liability
but, that is not always the case. As pointed out by Nugent
JA in Van
Duivenbonen, para 21, there might be factors that militate against
the imposition of liability, which would include the
availability of
an alternate remedy, the possibility that imposing liability might
undermine the functioning of the State organ
in question, the
convenience of administering a rule that liability will be imposed in
these circumstances, the possibility of
limitless liability and
whether the plaintiff is best placed to protect himself against loss.
It is generally only when these concerns
are net that the value may
require the recognition of a legal duty under the wrongful enquiry.
[16]
In the context of delictual damages, the test for determining
wrongfulness or otherwise of an omission to act is as restated
in Van
Eeden v Minister of Safety and Security (Women's Legal Centre Trust,
as Amicus Curiae) 2003 (1) SA 389 (SCA).
'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 in 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
also Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA) paras
14-17; Cape Metropolitan Council v Graham 2001 (1) SA 1197
(SCA) para
6; Olitzki Property Holdings v State Tender Board and Another 2001
(3) SA 1247 (SCA) para [11 ] and [31 ]; BOB Bank
Ltd v Ries 2002 (2)
SA 39 (SCA) para 13; and Van Duivenboden above, para 16).
[17]
The concept of the legal convictions of the community always plays an
important role in determining wrongfulness. In applying
this concept,
the Court is not concerned with what the community regards as
socially, morally, ethically or religiously right or
wrong, but
whether or not the community regards a particular act or form of
conduct as delictually wrongful. The legal convictions
of the
community must further be seen as legal convictions of the legal
policy makers of the community, such as the Legislature
and Judges
(see Schultz v Butt 1986 (3) SA 667 (A) at 679D-E; Premier Hangers CC
v Polyoak (Pty) Ltd 1997 (1) SA 416 (A) at 422E-F
and Minister of
Safety and Security v Hamilton 2004 (2) SA216(SCA).
[18]
Having set out the applicable general principles, I turn now to the
facts of the present case. In argument, Mr. Scheepers,
counsel for
the plaintiff, arguing for the finding of liability on the part of
the police, relied on s 12 of the repealed Arms
and Ammunitions Act
75 of 1969 (the repealed Act). Counsel contended that the police,
fully knowing of Selinda's conviction, should
have known that by
operation of law, he was deemed to be declared unfit to possess a
firearm, unless the court had decided otherwise.
On that basis, so
argued counsel, the police should have removed the service pistol
from Selinda's possession. To appreciate counsel's
argument, s 12
provided that:
(1)
A person who is convicted by a court in contravention of a provision
of this Act relating to the unlawful possession of an arm
without the
required licence, permit or other authorization, or of section 39 (1)
(i), (j), (k), (I) or (m), or any other offence
in the commission of
which an arm was used (excluding any such conviction following upon
the payment of an admission of guilt fine
to be declared unfit to
possess an arm, unless the court determines otherwise.
(3)
The court shall upon convicting any person referred to in subsection
(1) or where the court exercises a discretion as referred
to in
subsection (2), bring the provisions of the subsection concerned to
the notice of such person and afford him an opportunity
to advance
reasons and present evidence why he should not be declare unfit to
possess an arm.
[19]
Mr. Bester, counsel for the Minister, urged me, quite forcefully, to
disregard Mr Scheepers' reliance on s 12, contending that
such
reliance was not pleaded. Counsel argued it was not the plaintiff's
pleaded case that the Minister was liable for any wrongful
omission
by the police in failing to deprive Selinda the firearm in terms of s
12, and was being raised for the first time in argument.
The short
answer to this submission is that pleadings must be read as a whole.
The plaintiff need only plead the salient facts
upon which she relies
for the conclusion that the police had breached the legal duty (which
duty is admitted in the plea).
[20]
The plaintiff alleged in her amended particulars of claim (paragraph
5B) that there is a duty on the police to ensure that
those of their
members issued with service pistols, are, and remain fit, to possess
their service pistols. This is admitted by
the Minister. To my mind,
it is implicit in this allegation that the police had a duty to
ensure, among others, that those within
their ranks convicted of
specified offences, are dispossessed of their service pistols. On a
reading of the pleadings as a whole,
I am satisfied that the primary
premise on which the plaintiff's claim is based, has been
sufficiently pleaded. In any event, even
if there is merit in this
argument, it makes no difference to the outcome of the case, as would
be clear later in the judgment.
[21]
Mr Bester, for the Minister, pointed out that the Commisioner of
Police's power to withdraw Selinda's possession of the service
pistol
was confined to the jurisdictional requirements of s 11 of the
repealed Act, which empowered the Commissioner of Police
to declare
persons to be unfit to possess arms. It provided:
"(1)
If the Commissioner is of the opinion that on the ground of
information contained in a statement made under oath, other
than such
a statement made by the person against whom action in terms of this
section is contemplated, there is reason to believe
that any person
is a person-
(a)
............................
(b)
who has threatened or expressed the intention to kill or injure
himself or any other person
by
means of an arm; or
(c)
whose possession of an arm is not in the interest of that person or
any other person as a
result
of his mental condition, his inclination to violence, whether an arm
was used in the violence or not, or his dependence on
intoxication
liquor or a drug which has a narcotic effect; or;
(d)
who, while in lawful possession of an arm, failed to take reasonable
steps for the
safekeeping of such arm,
(e)
............................
he
may, by notice in writing delivered or tendered to such person by a
policemen, call upon such person to appear before the Commissioner
at
such time and place an may be specified in the notice, in order to
advance reasons why such person shall not be declared unfit
to
possess any arm on any ground aforesaid so specified.'
[22]
Counsel submitted that none of the jurisdictional requirements for
the exercise of the Commissioner's power was present in
this case. I
do not agree. In considering the applicability of the section, one
should have regard to its overriding purpose, which
was clearly to
give the Commissioner the power to ensure that firearms remain only
in the hands of responsible and fit persons
to possess them. On a
proper construction of s 11, the Commissioner could have acted on
either of (c) or (d). Selinda's inclination
to violence can be
inferred from the first the two incidents on 30 April and 18 December
1994, respectively. His failure to take
reasonable steps to safeguard
a firearm is borne out by the respective incidents on 10 April and 25
September 1994. Any of Selinda's
colleagues or superiors should have
proceeded to place on oath, these incidents to the Commissioner. None
of them did, under circumstances
where they were expected to do so.
[23]
Even if this conclusion is wrong, I find astonishing, and untenable,
the proposition that because Selinda's conduct did not
fall on all
fours within the jurisdictional factors of s 11, nothing could be
done to withdraw his service pistol, even in light
of glaring danger
to society posed by his continued possession of the service pistol. I
would be surprised if there are no internal
processes to regulate the
use and handling of service pistols by members of SAPS. That internal
process would have allowed the
police to withdraw Selinda's service
pistol.
[24]
That there was a public law duty on the police to withdraw Selinda's
service pistol should be clear under the circumstances.
There was
sufficient information at their disposal to do so. The four
incidents, in my view, demonstrated a potential danger by
Selinda's
continued possession of his service pistol. I was informed from the
Bar that Selinda had joined the police service in
1993. This means
that in less than two years, he had chalked up the four incidents
involving the handling and use of a firearm.
To that extent, he was,
as at 12 March 1999, unfit to remain in possession of a firearm. [25]
The police did not have to wait for
him to be declared unfit to
possess a firearm by a court. Besides, it is difficult to understand
how a person with a criminal record
remained a member of the police
service, let alone continue to possess a service pistol, which he had
demonstrated, on no less
than four occasions, to be clearly unfit to
possess. The police adopted a supine attitude to potential danger
posed by the continued
possession of a service pistol by Selinda. In
my judgment the police were clearly negligent in their omission to
withdraw the pistol
from Selinda.
[26]
That finding brings me to the issue of foreseeability. It is to be
borne in mind when considering this aspect that the precise
or exact
manner in which harm occurs need not be foreseeable: only the general
manner of its occurrence. In Sea Harvest Corporation
(Pty) Ltd and
Another v Duncan Dock Storage (Pty) and Another 2000 (1) SA 827 (SCA)
([2000] 1 All SA128), Scott JA stated the following
at 840 D-E:
"The
problem is always to decide where to draw the line, particularly in
those cases where the result is readily foreseeable
but not the
cause. This is more likely to arise in situations where, for example,
one is dealing with a genus if potential danger
which is extensive,
such as fire, or where it is common cause there is another person
whose wrongdoing is more obvious than that
of the chosen defendant It
is here that a degree of flexibility is called for. Just where the
inquiry as to culpability ends and
the inquiry as to remoteness (or
legal causation) begins -both of which may involve the question of
foreseeability - must therefore
to some extent depend on the
circumstances.... In many cases the facts will be such as to render
the distinction clear, but not
always. Too rigid an approach in
borderline cases could result in attributing culpability to conduct
which has sometimes been called
negligence "in the air".'
[27]
In my view it was indeed reasonably foreseeable that if Selinda
remained in possession of his service pistol a citizen could
be
harmed. From Selinda's previous handling and use of the service
pistol, it was only a matter of time before he did something
tragic,
either to himself or to an innocent person. The unfortunate person
was the plaintiff, whose right to bodily integrity was
violated. In
Hamilton the right to bodily integrity and security of the person was
confirmed as one of an individual's absolute
rights of personality,
with reference to Minister of Justice v Hofmeyer 1993 (3) SA 131 (a)
at 145M46C.
[28]
A brief consideration of a number of relevant decisions, in which
negligent failures have attracted liability, shows that our
courts
attach much weight to the right to bodily integrity and personal
safety. In Seema v Lid van die Uitvoerende Raad vir Gesondheid,
Gauteng 2002(1) SA 771 (T) a seriously disturbed mental patient was
negligently allowed to escape from a mental institution. He
proceeded
to kidnap and rape the plaintiff's daughter. The Minister, whose
servants had allowed the escape, was liable for the
damages.
[29]
In Van Duivenboden, above, the Minister was held liable to a
plaintiff who was shot by a person where a number of police officers
who knew that he was unfit to possess a firearm and was inherently
dangerous had negligently failed to take steps in terms of s11
of the
Arms and Ammunition Act 75 of 1969 to ensure that he be deprived of
his weapons. Similarly, the Minister was held liable
in Van Eeden
above, a case in which the plaintiff was raped after the police had
negligently allowed a dangerous criminal who was
likely to commit
further sexual offences to escape from custody some months before.
[30]
In Carmichele
*
v Minister of Safety and Security and Another (Centre For Applied
Legal Studies Intervening) 2001 (4) SA 93 (CC) 2002 (1) SACR
79; 2001
(10) BCLR 995 it was held that the police were under a duty to
protect individuals by taking active steps to prevent dangerous
persons held in the prison from escaping into the community if they
were likely to commit acts of violence if they did so escape.
In Van
der Spuy v Minister of Correctional Services 2004 (2) SA 463 (SE) a
by-stander had sustained certain gunshot injuries during
the course
of a prison escape. He was shot by one of the escaping prisoners. The
Minister was vicariously held liable to the plaintiff
for damages
suffered.
[31]
To sum up. I come to the conclusion that the police breached their
legal duty by neglecting to take steps to withdraw Selinda's
service
pistol in light of the known incidents discussed in the judgment.
Their negligence causally led to the shooting of the
plaintiff on 12
March 1999. The duty of the police to act positively with respect to
the continued possession of the firearm by
Selinda, in my view,
accords with the legal convictions of the community and there are no
considerations of public policy militating
against the imposition of
such duty.
[32]
As in Van Duivenboden, one is not dealing here with a situation
involving particular aspects of police activity in respect
of which
the public interest is best served by denying an action for
negligence. I conclude that the present case falls within
those where
liability should ensue, to the extent that the plaintiff has no other
effective remedy against the State, other than
an action for damages.
I can think of no public policy to dictate otherwise. Considerations
of public or legal policy, consistent
with our constitutional norms,
would demand the imposition of a legal duty (compare, for example,
Trustees, Two Ocean Aquarium
Trust v Kantey (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, and Minister of Safety and
Security v Madyibi 2010 (2) SA 356 (SCA) para 9.
[34]
In Van Duivenboden above at para 27 it was remarked that:
"Licences
to possess firearms are not issued to enable the holders to shoot
themselves or to shoot innocent persons who happen
to be in the way
... nor do firearms belong in the hands of drunks. I have little
doubt that the responsible police officers share
that view...."
[35]
These apposite remarks should apply with greater force where a holder
of such a licence is a police officer. Those in police
management
should demand exacting standards from their officers in the use and
handling of firearms. Anything less, resulting in
harm to innocent
citizens, is to be met with indignation by members of the community,
whose legal convictions dictate, in suitable
circumstances, that
liability should ensue. This is one such case.
[36]
I therefore make the following order:
1.
The defendant is ordered to pay the plaintiffs full proven or agreed
damages suffered as a result of being shot by VS Selinda
on 12 March
1999.
2.
The defendant is ordered to pay the plaintiff's costs relating to the
liability part of the case.
3.
The determination of the plaintiff's damages is postponed sine die.
TM
Makgoka
Judge
of the High Court
date
heard : 7 September 2011
judgment
delivered : 17 August 2012
for
the plaintiff : Adv GJ Scheepers
instructed
by : De Oliveira Serrao Attorneys, Pretoria
for
the defendant : Adv TWG Bester
Instructed
by : State Attorney, Pretoria
1
In
Telematrix
(Pty) Ltd
v
Advertising
Standards Authority SA
2006
(1) SA 461 (SCA) para 14.
*
To be distinguished from the SCA judgment concerning the same
parties, referred to in para [14] above.