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2012
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[2012] ZAECMHC 14
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Hlomza v Minister of Safety and Security and Another (1548/2007) [2012] ZAECMHC 14; 2013 (1) SACR 591 (ECM) (1 September 2012)
`IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE, MTHATHA
CASE NO. 1548/2007
In the matter between:
NTOMBENKOSI HLOMZA
....................................................
APPELLANT
and
THE MINISTER OF SAFETY
AND SECURITY
.......................................................
FIRST
RESPONDENT
THE STATION COMMISSIONER
OF THE CENTRAL POLICE
STATION, MTHATHA
........................................
SECOND
RESPONDENT
FULL BENCH APPEAL JUDGMENT
D VAN ZYL J:
[1] The appellant’s late husband, Bongani
Livingstone Hlomza (the deceased), was employed by the Minister of
Safety and Security
(the first respondent) as a police official
holding the rank of inspector. He was stationed at the Madeira police
station in Mthatha
where he was placed under the control and
supervision of the station commissioner of the Central police station
in Mthatha (the
second respondent). Tragically, on 13 February 2005
at the police camp in Mthatha, the deceased used his service firearm
issued
to him by the second respondent to first shoot and injure the
appellant, whereafter he committed suicide by shooting himself with
the same firearm.
[2] The appellant thereafter instituted a claim against
the respondents for damages in her personal and representative
capacity
as the “natural mother and guardian of the deceased’s
four minor children”. Her claim was for payment by the first
respondent in the sum of R5 080 000,00 (together with interest and
costs), being damages suffered by her consequent upon the injuries
she sustained (claim A) and the support she and the minor children
lost upon the death of the deceased (claims B and C). The amount
also
included a claim for funeral expenses which were incurred by the
appellant in attending to the burial of the deceased (claim
D).
[3] In her summons the appellant alleged that her
injuries and the deceased’s suicide was due to the negligence
of the second
respondent and / or certain other police officials. To
this extent it is alleged in summary that despite being aware of the
fact
that the deceased was ill tempered and unfit to possess a
firearm, that he assaulted and threatened the appellant with
violence,
including a threat to shoot her by pointing a firearm at
her, and that the Magistrate of Mthatha had issued a protection order
against the deceased, the respondents failed to enquire into the
fitness of the deceased to continue to remain in possession of
his
service firearm, to institute disciplinary proceedings against him
and to seize the firearm from his possession. Accordingly,
the second
respondent and other police officials should have foreseen the
deceased’s wrongful conduct and by failing to act
in the manner
alleged, they acted in breach of a legal duty owed to the appellant,
the deceased and their minor children.
[4] At the trial, the first respondent admitted
liability for the appellant’s damages for the injuries
sustained by her in
the shooting incident. The trial accordingly,
with the leave of the Court
a quo
, only proceeded on the
question whether the respondents were liable for any damage or loss
which the appellant and her minor children
may have sustained as a
result of the death of the deceased. Neither of the parties elected
to present
vive voce
evidence. Counsel for the appellant
contended that in light of the factual admissions which the
respondents made in their plea,
the appellant had established a
prima
facie
case for the relief sought and that there was an
evidentiary burden on the respondents to lead evidence in rebuttal.
Counsel for
the respondents in turn held the view that there was no
need to place any evidence before the Court, as the admissions which
the
appellant sought to place reliance on did not support her claims.
It was argued that the appellant had consequently not made out
a case
for the relief sought, and failed to discharge the
onus
of
proving the defendants are liable for any loss or damage she may have
suffered as a consequence of the death of the deceased.
[5] The Court
a quo
was accordingly called upon,
and proceeded to determine the issues before it, solely on the basis
of the factual allegations in
the appellant’s particulars of
claim that were admitted by the respondents in their plea. These
admissions were the following:
(a) The deceased shot and injured the appellant
whereafter he turned the firearm on himself and committed suicide.
(b) The deceased was issued with a service firearm for
use in and outside official working hours and in the course and scope
of
his duties as a member of the South African Police Services.
(c) The respondents had a legal duty to protect the
appellant from being injured by the deceased and to take all
reasonable steps
to prevent the deceased from injuring the appellant.
(d) The appellant was injured as a result of the
negligent conduct of the respondents and that such
“
negligent
conduct consisted in the commission of acts and / or omissions set
out in sub – paragraphs 7.1, 7.3, 7.4, 7.5, 7.6,
7.7, 7.10,
7.11, 7.13, 7.16, 7.17, 7.18 and 7.19”
of the
appellant’s particulars of claim.
(e) The respondents ought to have foreseen the
“
shooting
of the plaintiff by the deceased”
and ought to
have prevented it by seizing the firearm from the possession of the
deceased.
[6] The relevant sub – paragraphs of paragraph 7
of the particulars of claim which were admitted read as follows:
“
7.1 they failed to seize the official
firearm from possession of the deceased despite previous reports of
violence made by the Plaintiff
to them against the deceased;
7.2 ............
7.3 they became aware that the deceased had threatened to shoot
the Plaintiff and/or manifested threats of violence towards the
Plaintiff but failed to take steps to seize the official firearm from
possession of the decease;
7.4 they allowed the deceased to continue possession the official
firearm well knowing that the deceased was unfit to possess it;
7.5 they failed to take measures to re-assess the fitness of the
deceased to possess an official firearm after having received reports
of the deceased’s acts of violence from the Plaintiff;
7.6 they allowed the deceased to be in possession of an official
firearm even after working hours well knowing that the deceased
had
previously threatened to shoot the Plaintiff;
7.7 they allowed the deceased to be in possession of an official
firearm even after working hours well knowing that the deceased
had
adopted a violent attitude towards the Plaintiff and was
ill-tempered;
7.8 .....................
7.9 .......................
7.10 they failed to institute a disciplinary inquiry against the
deceased which would have rendered the deceased unfit to possess
a
firearm, especially when not on duty;
7.11 they failed to constitute a Firearms Committee in terms of
the provisions of
Provincial Order 3/1998
upon receiving
complaints of assault and pointing of a firearm from the Plaintiff
and threats of violence by the deceased;
7.12 .........................
7.13 they failed to report the violent conduct of the deceased
towards the Plaintiff to higher authorities in the South African
Police Service;
7.14 .............................
7.15 ...............................
7.16 they failed to seize the official firearms from possession of
the deceased well knowing that the Magistrate, Mthatha had granted
a
Protection Order against the deceased at the instance and in favour
of the Plaintiff;
7.17 they authorized or allowed the deceased to possess the
official firearm when not on duty;
7.17.1 without having first investigated whether the deceased was
fit to possess a firearm; and
7.17.2 without investigating whether the deceased was having a
stable family life or not;
7.18 they granted the deceased permission to possess the official
firearm or allowed him to possess it when not on official duty
without the prescribed official procedures having first been complied
with;
7.19 they failed to take measures to protect the Plaintiff from
being injured by the deceased when they had means and ability to
do
so;”
[7] The respondents denied and placed in issue the
following allegations in the appellant’s particulars of claim:
(a) “4.9 The Second Defendant and other policeman had a
legal duty;
4.9.1 ........................
4.9.2 ........................
4.9.3 to prevent the deceased from killing himself, and
4.9.4 to take the reasonable steps to prevent the deceased from
killing himself with an official firearm.”
And that
(b) The death of the deceased was caused by the negligence of the
respondents and that they should have foreseen that he would commit
suicide and should have prevented him from doing so by seizing the
firearm from him.
[8] In deciding the issue of the respondents’
liability for the appellant’s claims in relation to her and the
minor
children’s loss of support and the costs of the funeral
expenses incurred by her, the Court
a quo
confined itself to the issue of causation. On a reading
of its judgment, the Court’s motivation for limiting its
decision
in the matter to causation, seems to be based on its view
that the appellant’s case effectively amounted to a contention
that, once the respondents had acknowledged in their plea that they
were negligent in failing to remove the deceased’s firearm
in
circumstances where there was a legal duty to do so, it had to follow
“
. . . that each and every action the deceased
thereafter committed with the firearm which caused harm to another,
must
ipso facto
be laid at the door of the
dependants.”
As this argument suggested
limitless or boundless liability, something which the element of
causation seeks to prevent, the Court
saw it as determinative of the
appellant’s claims. It found that on the evidence the appellant
had failed to discharge the
onus of establishing that the
respondents’ negligence in failing to remove the deceased’s
service firearm from his
possession was the cause of him being
killed, and proceeded to make an order of absolution from the
instance in respect of the
appellant’s claims B, C and D. It is
against this order that the appellant was granted leave by the Court
a quo
to appeal to
this Court.
[9] By way of introduction, it may be convenient to deal
with two matters. The first relates to the necessity to draw a
distinction
between the nature and scope of the appellant’s
claim for damages for bodily injury on the one hand, and her claims
for loss
of support and funeral expenses, which form the subject
matter of this appeal, on the other. This will serve to explain the
issues
raised in the matter and also why it is necessary to
separately determine those issues despite the respondents’
acknowledgement
that they are liable for the appellants loss she
suffered as a result of the injuries sustained by her. The
appellant’s claims
for loss of support is what is generally
referred to as a dependant’s claim, that is a claim for damages
sustained as a result
of the wrongful death of a person who is in law
under a legal duty to provide for the maintenance and support of
another.
“
The remedy relates to material loss
‘
caused
to the dependants of the deceased man by his death.’
It aims at placing them in as good a position, as regards
maintenance, as they would have been in if the deceased had not been
killed.”
1
[10] A dependant who has suffered patrimonial loss
through the death of his or her breadwinner would be entitled to
compensation,
and the defendant would incur liability, if it is
proved that the defendant wrongfully caused the death of the deceased
breadwinner.
To satisfy the requirement of wrongful death, the
plaintiff is required to prove: (a) a wrongful act by the defendant;
(b) the
death of the breadwinner, and (c) a causal nexus between (a)
and (b), and (d), concomitant
culpa (or dolus)
on the part of the defendant.
2
[11] The right of dependants to claim compensation for
loss of support is not derived from the deceased or his estate.
“
They
derive their rights from the fact that they have been injured by the
death of the deceased, and that the defendant is in law
responsible
for it.”
3
The result is that, otherwise than in the Anglo –
American jurisdictions,
4
defences which would have been available against the
deceased had he lived and sued for personal loss or damage, such as
waiver
of action
5
or contributory negligence,
6
cannot be raised against the dependants.
[12] It also follows that despite the fact that, as in
the instant matter, where both claims arise from the same negligent
act or
omission, the right of the appellant as a dependant to claim
damages for loss of support arising out of the death of the deceased
breadwinner, is a right distinct from her right to claim damages
arising from the bodily injuries sustained by her. Accordingly,
as
opposed to a claim for bodily injury or damage to property, where the
action lies against a wrongful act committed by the defendant
in
respect of the plaintiff’s person or property, and with
culpa
(or dolus) vis – à – vis
the
plaintiff, the dependant’s action requires a wrongful act
vis
– à – vis
the deceased
breadwinner causing his or her death
7
Similarly, it is the wrongful causing of the death of
another that entitles a member of the deceased’s family to be
compensated
for the expenses of the burial of the deceased
breadwinner.
8
[13] The second matter relates to the approach of the
Court
a quo
to the evidence and more particularly the
evidential value of the admissions made by the respondents in their
plea. The Court
a quo
expressed the view that generally the
Courts would be loath, in the absence of evidence, to extend such
admissions and the inferences
to be drawn therefrom, to form a basis
for a finding that a fact denied by a defendant in his plea should be
regarded as having
been proved. It is not correct as was suggested at
the hearing of this appeal by both Counsel for the appellant and the
respondent,
that the Court
a quo
approached the evidence on
that basis. It rather, notwithstanding its expressed reservation,
proceeded to decide the issues on
the basis of the admissions made by
the respondents in their plea. What it found was that the
respondents’ admissions in
their plea were insufficient to
conclude that the appellant had proved the element of causation in
the absence of evidence relating
to: (a) whether the deceased may
nonetheless, despite, the respondent’s omission to remove his
service pistol from his possession,
have committed suicide: and (b)
the state of mind of the deceased and the extent of his instability
at the time when he shot the
appellant, and then proceeded to commit
suicide.
[14] There is in my view, in principle, no objection to
the determination of an issue placed in dispute by a defendant in his
plea
on the basis of factual admissions made by him or her therein.
The question in each case remains whether at the end of the trial,
after both parties had an opportunity to present evidence and have
closed their respective cases, there exists sufficient admissible
evidence in the body of evidence before the trial court on which the
issues in dispute may be determined. It matters not whether
such
evidence consists of admissions made in the pleadings, or is
contained in other documentation which may have been placed into
evidence, or of
viva voce
evidence
relating to the matters in dispute. An admission of an allegation of
fact in a plaintiff’s particulars of claim or
declaration is
eliminated from the issues to be tried and the plaintiff is as a
result relieved of the duty to present evidence
to establish it.
9
[15] This statement is however subject to the
caveat
that an admission is not to be taken to extend to
anything which cannot fairly be regarded as an inevitable consequence
or a necessary
implication thereof
10
This will require careful consideration of whether the
admissions are in fact adverse to the maker thereof. To this extent
one should
have regard to the pleadings as a whole. The reason is
that the content of the admission may be qualified, explained or even
nullified
by the context in which the admission was made. I may add
that where a party seeks to draw inferences from an admission of
fact,
the admitted fact should be capable of supporting the inference
sought to be drawn therefrom. In the absence thereof the method
of
inference fails and what is left is mere speculation or conjecture.
It follows that a litigant who wishes to place reliance
on the
drawing of an inference from admitted facts in a defendant’s
plea, should be careful so as not to leave out the factual
foundation
necessary to draw the desired inference. This may in any particular
case require the admitted facts to be supplemented
by other evidence.
[16] Turning now to deal with the issues raised in the
present matter, it is evident from a reading of the judgment of the
Court
a quo
that the
appellant contended that by reason of the decision in
Minister
of Safety and Security and Another v Madyibi
11
(Madyibi),
the admitted facts
in the respondents’ plea were sufficient to hold the police
liable to compensate the appellant for any
loss of support she may
have sustained as a consequence of the death of the deceased. The
admitted facts in
Madyibi
were
that the deceased, a police officer, shot himself with his service
firearm after he had first shot and injured his wife. As
in the
present matter, she survived the shooting and proceeded to institute
an action, both in her personal capacity and on behalf
of her minor
children born of her marriage with the deceased, for loss of support
for herself and the children. The trial Court
upheld her claims.
[17] On appeal the issues were limited to wrongfulness.
It was held that a legal duty existed in circumstances where the
police
were in possession of information that the deceased had
previously threatened to shoot his wife; that their marriage
relationship
had significantly deteriorated; that his family life was
unstable, and that the deceased had manifested suicide tendencies. It
was found that the negligent failure of the police to dispossess the
deceased from his service firearm 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) ([2007])
1 All SA 240)
at para 10;
Steenkamp NO v Provincial Tender Board, Eastern Cape
2007(3)
SA 121 (CC) (2007(3) BCLR 300) at paras 39 and 41).”
12
[18] There are clearly similarities between the facts of
the
Madyibi
case and
those of the present matter. The main distinguishing factor is
however that in
casu,
the
respondents pertinently denied the allegation that the police
“
knew
that the deceased had suicidal tendencies”
13
It was then also on this basis that the Court
a
quo
held that
Madyibi
is to be distinguished. It found that in the absence of
such knowledge on the part of the respondents, and in the absence of
the
evidence referred to earlier,
14
it cannot be concluded that their existed a casual
nexus
between the respondent’s omission to remove the
deceased’s service firearm from his possession, and his death.
By limiting
itself to the element of causation, the Court
a
quo
accordingly assumed for purposes of its
judgment, that the issues relating to wrongfulness and negligence
were established on the
evidence. I do not however intend to limit
this judgment to the issue of causation. The reason is that the
elements of wrongfulness
and fault remained in dispute on the
pleadings as they stand. Further, and although wrongfulness,
negligence and causation are
separate elements with its own enquiry,
each serving a different function,
15
they are naturally interrelated
16
and overlap in their content and on the issues raised
thereby.
17
“
Broadly speaking, wrongfulness . . . on the one hand, and
remoteness on the other, perform the same function. They are both
measures
of control. They both serve as a ‘longstop’
where most right-minded people, including judges, will regard the
imposition
of liability in a particular case as untenable, despite
the presence of all other elements of delictual liability.”
18
[19] Proceeding then to firstly deal with the element of
lawfulness, the conduct which forms the subject matter of the
appellant’s
complaint is the failure of the second respondent
and other relevant police officials to investigate the fitness of the
deceased
to possess a firearm, and to remove it from his possession.
The conduct of the first respondent’s functionaries forming the
basis of the appellant’s cause of action is therefore an
omission. A negligent omission is unlawful only if it occurs in
circumstances that the law regard as sufficient to give rise to a
legal duty to avoid harm to others. As stated by Brand JA in
Trustees, Two Oceans Aquarium Trust v Kantey &
Templer (Pty) Ltd:
19
“
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.”
20
[20] The question whether a legal duty existed in a
particular case is an after the fact objective assessment, in the
sense that
it is determined with reference to all the relevant facts
and circumstances of the case, based on the flexible criterion of the
legal convictions of the community and legal policy, both of which
are now derived from the values of the Constitution, and taking
into
account the interplay of the many factors which may point to, or away
from the existence of a legal duty.
21
According to Nugent JA in
Minister
of Safety and Security v Van Duivenboden
22
,
“
what is called for is not an intuitive reaction to a
collection of arbitrary factors but rather a balancing against one
another
of indentifiable norms.”
23
The question whether a legal duty exists in a particular
case is therefore a
“
conclusion of law depending on a
consideration of all the circumstances of the case and on an
interplay or the many factors which
have to be considered.”
and
“
An important consideration in favour of recognising
delictual liability for damages on the part of the State in
circumstances such
as the present is that there is no other practical
and effective remedy available to the victim of violent crime.
Conventional
remedies such as review and
mandamus
or interdict do not afford the victim of crime any relief at all.
The only effective remedy is a private law delictual action for
damages.”
24
[21] The question to be answered in the present matter
is whether a police officials who, in the exercise of their duties on
behalf
of the State, are in possession of information that a member
of the police force, over whom they have authority, is unfit to
possess
a firearm, are under an actionable duty, not only to members
of his family, but to the police official himself, to take reasonable
steps to act on that information in order to avoid death. The Court
a
quo
regarded the absence of evidence that the
deceased had displayed suicidal tendencies prior to his death to be
determinative of the
element of causation. It found that in the
absence of such knowledge the death of the deceased was not
reasonably foreseeable.
As stated earlier
25
,
the factors that are to be taken into account in the enquiry in
relation to the separate elements of wrongfulness, negligence
and
causation may overlap, and although ordinarily a standard of
negligence, foreseeability is also relevant to both causation
and to
wrongfulness.
“
. . . forseeability of harm is another
factor to be taken into account in determining unlawfulness. The
greater the foreseeability,
the greater the possibility of a legal
duty to prevent harm”
26
In
Steenkamp NO v Provincial
Tender Board, Eastern Cape
27
Moseneke DCJ similarly said that
“
It
should be kept in mind that in the determination of wrongfulness
foreseeability of harm, although ordinarily a standard for
negligence, is not irrelevant.”
28
[22] In the circumstances of the present matter, the
death of the deceased was in my view reasonably foreseeable and does
not constitute
an obstacle in finding that the respondents had a
legal duty to act positively. I shall deal more fully with
foreseeability under
the heading of negligence.
29
However, foreseeability as a consideration in
determining the existence of a legal duty does not stand alone. It
may, in the circumstances
of any particular case, be one of several
factors which are to be balanced in making, what is, as stated,
essentially a value judgment,
based on considerations of public
policy. In
Van Eeden v Minister of Safety and
Security
30
Vivier
ADP explained it as follows:
“
. . .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.”
31
In
Delphisure Group Insurance
Brokers Cape v Kotze
32
Leach JA added that each case must be considered on its
own merits and that
“
. . . there is no simple litmus
test that can be applied to determine whether in all cases liability
should follow”
33
.
The ultimate question is whether, on a conspectus of all the relevant
facts, considerations of public policy and public interest
favour a
finding that a legal duty existed.
34
[23] Other considerations which are relevant to the
existence of a legal duty in the circumstances of the present case
are in my
view the following: The respondents occupy a public office
where they perform a constitutional and statutory function, thereby
introducing accountability as a relevant factor.
35
The first respondent was the employer of the deceased
who was placed under the control and command of members of the police
service.
In that capacity the deceased was placed in possession of a
State owned firearm, no doubt to be used in the exercise of his
duties
and functions as a police officer. The respondents exercised
control over the deceased’s possession of what is potentially
a
lethal weapon. A police official is not permitted to be in possession
of a State owned firearm when he or she is not on duty.
In terms of
Provincial Order 3 of 1998, the provisions of which were admitted by
the respondents in their plea, a member of the
police services may
apply, by following the prescribed procedure, to be given
authorisation to remain in possession of his state
owned firearm when
not on duty if he or she believes that his or her work or personal
situation justifies it.
36
[24] In deciding whether or not to grant such an
application by a member, an evaluation committee which is established
at every
station or unit exclusively for that purpose,
37
is tasked to consider a number of criteria. Relevant to
the present enquiry is the stability of the official’s family
life,
38
whether he or she has a history of alcohol or substance
abuse,
39
and whether he or she has
“
a history of
depression and anxiety”
.
40
From a reading of the stipulated criteria, it is evident
that it does not only relate to a determination of whether there
exists
a need for the official concerned to perform police duties
after work hours, or whether there exists a real threat to his
personal
safety and that of his family by virtue of his employment,
but also whether his possession of his service firearm after hours
may
pose a threat to himself and his family. Paragraph 8.1 of
Provincial Order 3 of 1998 authorises the Station Commissioner or
Unit
Commander of a police member to withdraw his permission to be in
possession of his service firearm when off duty with immediate
effect
if such member makes himself guilty of serious misconduct.
41
[25] It is evident from the aforegoing that the
respondents were in a very close or proximate relationship with the
deceased by
virtue of his employment and the position occupied by
him. Although the existence of a special relationship (proximity) is
not
essential for wrongfulness,
“
. . . if there is in
fact some connecting factor between the plaintiff and the defendant,
it is more likely that in the case where
the defendant is an
individual the breach of a duty might arise; and in the case where
the defendant is the State it is less likely
that there will be any
deviation from the norm of accountability that the Constitution
imposes.”
42
This relationship required the respondents to exercise
control over his fitness, and his continued fitness, to be in
possession
of a potentially lethal weapon. The provisions of
Provincial Order 3 of 1998 required the respondents to assess the
competence
and desirability of the deceased to be in possession of
his service firearm when off duty, with particular reference to his
mental
condition and his domestic circumstances. It is a function
which they were required to perform before the deceased was granted
authorisation, and thereafter, if he had made himself guilty of
serious misconduct. It accordingly did not require the respondents
to
do anything outside of what was expected of them as part of their
usual functions. The imposition of a legal duty in these
circumstances would therefore not place an additional burden on the
police, or have the potential to disrupt the functioning of
the
police, or require the provision of additional resources
43
.
[26] Finally, the recognition of liability in the
circumstances of the present matter would not, as a policy
consideration, in my
view lead to a limitless number of claimants who
are likely to bring a multiplicity of actions against the
respondents.
44
As this was raised by the respondents as an objection in
the context of the enquiry relating to legal causation, I shall deal
more
fully therewith under that heading.
45
To conclude, I am of the view that the imposition of a
legal duty on the respondents in the circumstances of the present
case would
not offend against any legal or public policy
considerations.
[27] The next question is whether the respondents were
negligent. The question on the facts of the present matter is whether
or
not the second respondent and other relevant police officials,
acting in their capacities as the servants of the first respondent,
negligently breached the legal duty which rested upon them. The
classic test for establishing the existence or otherwise of
negligence,
quoted with approval in numerous decisions, is that
formulated by Holmes JA in
Kruger v Coetzee
46
in
the following terms:
“’
For the purposes of liability
culpa
arises if –
a
diligens paterfamilias
in the position of the defendant
–
would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial loss;
and
would take reasonable steps to guard against such occurrence; and
the defendant failed to take such steps.
47
Although this formulation is, as was stated in
Minister
of Police v Skosana
,
48
rather directed to the position where
the
person injured suffered patrimonial loss, it is also applicable, with
minor adjustments, to a claim by a dependant for a loss
of support
sustained as a result of the death of a breadwinner. Adjusted, the
test is whether a reasonable person would in the
circumstances have
foreseen the reasonable possibility that his conduct may cause the
death of the deceased breadwinner and would
have taken steps to guard
against it occurring.
[28] The test for negligence therefore rests on two
legs, namely reasonable foreseeability and reasonable preventability
of loss
or harm. As stated earlier,
49
the Court
a quo
considered the issue of reasonable foreseeability in the
context of determining legal causation. The question posed by the
Court
in deciding this issue was
“
whether or not a
reasonable person in the position of the police would have foreseen
the likelihood of the deceased committing suicide
using the firearm
which they ought to have removed from him.”
50
I
t concluded that in the absence of evidence that the
respondents had knowledge of the deceased’s state of mind and
the extent
of his instability, his suicide was not reasonable
foreseeable.
[29] There are no hard and fast rules for the
determination of reasonable foreseeability. It is a flexible standard
which is to
be evaluated and adapted with reference to the
circumstances of each case, and will, as a broad guideline, depend on
the degree
of the possibility or likelihood of the manifestation of
harm, and the extent of the harmful consequences.
“
The
fundamental factor involved is the magnitude of the risk created by
the actor’s conduct. The magnitude of the risk comprises
two
elements: how strong the possibility or likelihood of harm is and the
gravity or seriousness of the possible harmful consequences
that are
risked.”
51
In the present matter this is to be assessed with
reference to the following facts: the deceased, stood in a very close
relationship
with the respondents by virtue of his employment as
police officer.
52
In that capacity he was placed in possession of a
potentially lethal weapon which he was allowed to remain in
possession of even
when he was not on duty. The respondents were in a
position of authority over the deceased and were pertinently tasked
with the
duty to assess his fitness to be in possession of his
service firearm when not on duty. This enquiry envisaged an
investigation
inter alia
into
his mental health and the stability of his domestic environment. The
respondents were in possession of information which showed
that the
deceased was unfit to possess a firearm; that he found himself in a
marriage relationship that had deteriorated to the
extent that he had
committed acts of violence towards his wife, threatened to shoot her
with his service firearm, and it was necessary
for her to obtain a
restraining order against him in an attempt to secure her own safety.
[30] Although suicide may in general not be regarded as
a usual occurrence, it is in the context of a troubled and fractured
domestic
relationship characterised by family violence, in my view
not so uncommon and unpredictable to be outside the bounds of what
may
be reasonably foreseeable. In
Barnard v
Santam Bpk
53
and
Road Accident Fund v Sauls
54
the Court quoted with approval a
dictum
of Mason J in
The Council of the
Shire of Wyong v Shirt and Others
:
‘
A
risk of injury which is quite unlikely to occur . . . may
nevertheless be plainly foreseeable. Consequently, when we speak of
a
risk of injury as being “foreseeable” we are not making
any statement as to the probability or improbability of its
occurrence, save that we are implicitly asserting that the risk is
not one that is far-fetched or fanciful. Although it is true
to say
that in many cases the greater the degree of probability of the
occurrence of the risk the more readily it will be perceived
to be a
risk, it certainly does not follow that a risk which is unlikely to
occur is not foreseeable.’
55
As stated by Olivier J in
Road
Accident Fund v Sauls
,
56
in the end the Court is required to evaluate all the
relevant facts of the case in order to decide if the harm caused was
foreseeable
as a reasonable possibility, that is, a possibility which
would not be too far-fetched or fanciful. In the present matter the
respondents
fairly admitted that the fact that the deceased carried
out his threat to shoot the appellant was a foreseeable consequence
of
the failure of the police to enquire into his fitness to possess a
firearm and to remove his service firearm from his possession.
That
the deceased would then, as a consequence of having shot his own
wife, turn the firearm on himself, was not, in my view, so
unpredictable as not to fall within what can be said to have been
reasonably foreseeable.
[31] The respondent’s submission with regard to
foreseeability was that where in the
Madyibi
case the police had admitted that they had knowledge
that the deceased had displayed suicidal tendencies prior to his
death, that
is not the position in the present matter, and in the
absence of such knowledge, the deceased’s suicide cannot be
said to
have been reasonably foreseeable. By limiting the enquiry in
relation to foreseeability to the presence or absence of suicidal
tendencies or knowledge thereof as suggested, is to place an undue
restriction thereon. The question whether a reasonable person
in the
position of the respondents would reasonably have foreseen the
suicide of the deceased, is a question which must be considered
and
assessed with reference to it occurring as a likelihood (and not a
probability), and is determined on
all
the facts and circumstances of the case.
[32] It may also rightfully be asked whether the
question posed by the Court
a quo
in deciding the issue of reasonable foresseability was
not too narrowly framed.
57
In other words, was it incumbent on the appellant to
show that the suicide itself was foreseeable? Being a dependant’s
action,
the appellant was simply required to show that the death of
the deceased was foreseeable. It was not necessary for the appellant
to show that the respondents ought to have foreseen the exact manner
in which the deceased would meet his death. As stated in
Hughes
v Lord Advocate,
58
“
to demand too great precision in the test of foreseeability
would be unfair to the pursuer since the facets of misadventure are
innumerable.”
59
In
Kruger v Van der Merwe and
Another
60
it is said that foreseeability
“
. . . in
relation to the remoteness of damage does not require foresight as to
the exact nature and extent of the damage; cf.
American
Restatement of the Law,
Torts (Negligence), para 435. It
is sufficient if the person sought to be held liable therefor should
reasonably have foreseen the
general nature of the harm that might,
as a result of his conduct, befall some person exposed to a risk of
harm by such conduct.”
61
[33] Although applied in the context of determining the
element of causation, the same principle applies to reasonable
forseeability
as a test for negligence. In
The
Premier of the Western Cape Province v Loots NO
62
Brandt JA explained it as follows:
“
. .
. the relative approach does not require that the precise nature and
extent of the actual harm which occurred was reasonably
foreseeable.
Nor does it require reasonable foreseeability of the exact manner in
which the harm actually occurred. What it requires
is that the
general nature of the harm that occurred and the general manner in
which it occurred was reasonably foreseeable. At
some earlier stage
there was a debate as to whether our courts should follow the
relative approach as opposed to the so-called
abstract or absolute
approach to negligence. But it now appears to be widely accepted by
academic writers, on good authority, that
our courts have adopted the
relative approach to negligence as a broad guideline, without
applying that approach in all its ramifications.”
63
The continued possession by the deceased of his service
firearm in the circumstances sketched, despite his admitted and
obvious
unfitness to be entrusted with such a weapon, created a risk
not only to the safety of others, but to that of the deceased
himself.
That his death ensued as a result of a deliberate act, as
opposed to his own negligence, is simply a variation of what was
foreseeable,
and falling within the risk created by the fact that a
person who was unfit to possess a firearm was entrusted with the
continued
possession thereof.
[34] However, for the reasons stated earlier,
64
I am satisfied that the reasonable possibility of the
deceased committing suicide was foreseeable. It follows that the
respondents
were accordingly obliged to take such precautions as were
reasonable to guard against that eventuality.
“
What
those steps would have been depends on an examination of all the
relevant circumstances and involves a value judgment which
is to be
made by balancing various competing considerations. These have been
said to include: ‘(a) the degree or extent of
the risk created
by the actor’s conduct; (b) the gravity of the possible
consequences if the risk of harm materialises; (c)
the utility of the
actor’s conduct; and (d) the burden of eliminating the risk of
harm’.
65
On the facts of the present matter the first two
considerations would have prompted a reasonable person to take steps
to prevent
the occurrence. A reasonable person in the position of the
respondents would have acted on the information concerning the
conduct
of the deceased, caused an enquiry to be held into the
fitness or otherwise of the deceased to be in a continued possession
of
his service firearm as envisaged by Provincial Order 3 of 1998,
and to remove it from his possession. I accordingly conclude that
on
the admitted facts negligence has been established.
[35] The last aspect to be considered is whether the
death of the deceased was too remote to be a cause of the
respondents’
negligence. Causation involves a consideration of
two different questions, namely (a) whether any factual link exists
between the
defendant’s conduct and the harm sustained by the
plaintiff, and (b) whether the defendant should be held legally
responsible
for the consequences of his conduct. In
Minister
of Police v Skosana
66
this distinction is explained as follows:
“
The first is a factual one and relates
to the question as to whether the negligent act or omission in
question caused or materially
contributed to (see
Silva’s
Fishing Corporation (Pty) Ltd v Maweza,
1957(2) S.A. 256 (A.D.) at p 264;
Kakamas Bestuursraad v Louw,
1960(2) S.A. 202 (A.D.) at p222) 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 sufficiently
closely or directly for legal
liability to ensue or whether, as it is said, the harm is too
remote.”
67
[36] The enquiry relating 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
applying this test the Court is required to
“
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 plaintiff’s loss would
have ensued or not. If it would in
any event have ensued, then the
wrongful conduct was not a cause of the plaintiff’s loss;
aliter,
if it would not so have ensued. If the
wrongful act is shown in this way not to be a
causa sine
qua non
of the loss suffered, then no legal liability can
arise.”
68
[37] Where, as in the present matter, the respondents’
conduct consists of an omission, the determination of factual
causation
involves a retrospective analysis of what would probably
have happened if they had acted positively. It requires one to
substitute
the respondents’ omission with a lawful positive
act. If the hypothetical positive conduct of the defendant would
probably
have prevented the particular consequence from occurring
“
.
. . then the omission was a necessary condition and therefore a cause
of the consequence. Conversely, if the consequence would
probably
still have occurred, then the omission was not a necessary condition
and cause of the consequence.”
69
The onus is on the plaintiff to establish this
proposition on a balance of probabilities.
70
[38] Applied to the present matter, the question is
whether the death of the deceased would have occurred if the
respondents had
enquired into, and determined his fitness to remain
in possession of his service firearm. On the facts there can be
little doubt
that if an enquiry was conducted, and on the information
that was known to the respondents, the deceased would have been found
to be unfit to possess a firearm. I can also see no grounds upon
which the deceased would have been permitted to remain in possession
of his service firearm, considering the fact that he had threatened
to shoot the appellant and acted in a violent manner towards
her to
the extent that it was necessary for her to obtain a restraining
order. It is therefore not surprising that in these circumstances
the
obvious unfitness of the deceased to have remained in possession of a
firearm was admitted by the respondents in their plea.
[39] Accepting this to be the position, the Court
a
quo
however found that notwithstanding the
respondents’ omission to remove the firearm from the possession
of the deceased, it
cannot be excluded, that in the absence of
evidence of how the events relating to the shooting of the appellant
and the death of
the deceased unfolded, that the deceased would
nonetheless have killed himself. He may, according the Court, have
had access to
another firearm, or, had he been bent on committing
suicide, he could have done so without the use of a firearm.
“
He
could, for instance, have cut his wrists or jumped off a high-rise
building . . .”
71
[40] The
onus
to
establish a factual link between a defendant’s conduct and the
detrimental consequence in question does not, as stated
by Van
Heerden AJA in
Minister of Safety and Security
v Halmilton
72
require the plaintiff to prove the casual link with
certainty,
“
. . . but simply to establish that the
wrongful and negligent conduct complained of was probably a cause of
the loss sustained.”
73
The enquiry according to Nugent JA in
Minister
of Safety and Security v Van Duivenboden
74
calls for
“
. . . a sensible
retrospective analysis of what would probably have occurred, based
upon the evidence and what can be expected to
occur in the ordinary
course of human affairs rather than an exercise in metaphysics.”
75
To this may be added that it is
“
. . .
usually sufficient for purposes of factual causation if a defendant’s
conduct has in any way contributed to the damage
sustained by the
plaintiff, for causation it is unnecessary that his conduct should be
the only cause, or the main cause, or a
direct cause
.”
76
[41] What is accordingly required is to conduct a
retrospective analysis of what probably would have happened if the
respondents
had removed the deceased’s service firearm from his
possession.
77
As this is a hypothetical enquiry, it is in most cases a
matter of inference from experience of how things generally happen
rather
than being capable of direct proof.
78
The natural and most likely result of finding the
deceased unfit to possess a firearm and removing his service firearm
from his
possession, is that it would have rendered him unable to
carry out his threat to shoot the appellant, and to end his own life
by
shooting himself. The attempt on the appellant’s life, which
is on the facts correctly admitted to be casually linked to the
failure of the respondents to disarm the deceased, and the latter’s
suicide, cannot be separated. As facts very seldom stand
in
isolation, but flow or arise from one another, a particular
consequence may be the result of a sequence of events forming a
factual causal chain that contributed to the production thereof. In
other words, the question is whether the respondents’
negligent
omission is a necessary condition in a set of conditions jointly
sufficient to produce the death of the deceased. On
the facts of the
present matter, human experience and common sense dictates that the
probability is that the decision of the deceased
to commit suicide
was inspired or motivated by his attempt on the appellant’s
life. Stated differently, but for the attempt
on his wife’s
life, he would in all probability not have committed suicide.
[42] The admitted facts in my view, therefore raise as a
probability, that positive conduct on the part of the respondents
would
not only have prevented injury to the appellant, but would also
have prevented the death of the deceased from occurring. On the
available evidence there accordingly exists
prima
facie
proof of factual causation. In the
absence of evidence from the respondents in rebuttal, the only
question that may rightfully be
asked is whether the available
evidence also admits to a conclusion that as a probability, the death
of the deceased would still
have occurred. In my view it does not,
and the suggestion that the deceased may have been bent on killing
himself, or that he may
unlawfully have acquired possession of
another firearm, amounts, in the absence of an evidential basis
therefor, to mere speculation.
[43] The next question is that of legal causation,
namely whether the respondents’ omission is linked sufficiently
closely
or directly to the death of the deceased for legal liability
to arise, or whether as it is said, it is too remote. The test for
legal causation is said to be
“
. . . a flexible one
in which factors such as reasonable foreseeability, directness, the
absence of or presence of a
novus actus interveniens
,
legal policy, reasonability, fairness and justice will play their
part.”
79
In
Smith v Abrahams
80
the Court emphasised that although comparisons between
the facts of a particular case which has to be resolved and the facts
of
other cases in which a solution has already been found, or which
might hypothetically arise, may be useful and even decisive, care
should be taken not to lay down fixed or generally applicable rules
or principles for the process of comparison. Accordingly, the
argument that a plaintiff’s claim should
“
in
principle”
be rejected, is misplaced.
“
Daar
is net een ‘beginsel’: om te bepaal of die eiser se skade
te ver verwyderd is van die verweerder se handeling om
laasgenoemde
dit toe te reken, moet oorwegings van beleid, redelikheid, billikheid
en regverdigheid toegepas word op die
besondere feite van
hierdie saak
.”
81
(my emphasis).
[44] In the present matter reasonable foreseeability and
policy were raised as considerations that may militate against a
finding
that the failure of the respondents to act upon the
information in their possession, was causally closely or directly
linked to
the death of the deceased. As I have concluded earlier, the
suicide of the deceased was in the circumstances of the present
matter
an occurrence which was reasonably foreseeable.
82
With regard to the consideration of public or legal
policy, Counsel for the respondents in his heads of argument raised
the concern
that to hold the respondents liable for the death of the
deceased would
“
open the floodgates to persons using
firearms with the hope of enriching their families,”
and
extend a duty to the police that would go beyond their statutory and
constitutional functions.
The fear that a finding
of liability in the present matter may result in the imposition of
liability in a wide range of similar
situations, or may give rise to
a limitless number of claimants who are likely to bring a
multiplicity of actions, is in my view
not justified.
This
is not the type of case where liability cannot be imposed without it
also extending to a number of other cases. Both the existence
of a
legal duty and legal causation in the present matter is largely fact
and circumstance based. Establishing a predictable or
uniform outcome
in other cases falling within the same
“
category”,
is for this reason not a real danger. If the broader
social interest of the public at large is considered, the imposition
of liability
in the present matter would not, as stated earlier,
83
disrupt or place an undue burden on police resources. It
is also highly unlikely that large numbers of breadwinners would now,
as
a result of a finding of liability in this case, proceed to take
their own lives simply to benefit their dependants. Liability will
in
each case further be limited or controlled by the elements of
wrongfulness and fault, particularly with reference to considerations
such as foreseeability, proximity and control.
84
[45] To conclude, in my view an application of the
considerations relevant to legal causation does not on the facts of
the present
case require a denial of the appellant’s claims.
From what has been said above, the suicide of the deceased was a
reasonably
foreseeable consequence of the respondents’ failure
to comply with their legal duty. It being foreseeable, it does not
constitute
a
novus actus interveniens
that broke the chain of events.
85
Furthermore, to hold the respondents liable for the
death of the deceased, does not in my view militate against
considerations of
legal or public policy, reasonableness, fairness
and justice.
[46] For these reasons I would allow the appeal and make
the following order:
(a) The appeal is upheld with costs, such costs to
include the costs occasioned by the employment of two Counsel; and
Paragraph 2 of the order of the Court
a quo
is
set aside and is substituted with the following order:
“
The first defendant is liable for any
proven damages the plaintiff may have suffered as a result of the
death of the deceased, namely
Bongani Livingston Hlomza, as set out
in claims B, C and D of her particulars of claim.”
_____________________________
D VAN ZYL
JUDGE OF HIGH COURT
I agree
____________________________
L P PAKADE
ACTING DEPUTY JUDGE PRESIDENT
I agree
_____________________________
M NOTUNUNU
ACTING JUDGE OF THE HIGH COURT
Counsel for the Appellant: Adv. N Dukada SC with
Adv M N Hinana
Instructed by: V V Msindo & Associates
2
nd
Floor Meeg Bank
Office 202 & 205
60 Sutherland Street
MTHATHA
Counsel for the Respondent: Adv S M Mbenenge SC with
Adv A M Da Silva
Instructed by: State Attorney
3
rd
Floor Permanent Building
42 – 46 Oxford Street
EAST LONDON
1
Holmes
JA in
Legal Insurance Company Ltd v Botes
1963(1) SA 608(A)
at 614 E – F.
2
“
A
person is understood to kill wrongfully when it occurs by his
deliberate act or his fault. And loss caused without wrongfulness
is
not condemned by any other
lex
,
hence a person who causes some loss without fault or deliberate
intent, but by accident, is not punished.”
(G3.2.11.
See also D9.2.5.1 and D47.10.1) See further
Evins
v Shield Insurance Co. Ltd
1980(2) SA 814(A) at 839A - C;
Santam
Bpk v Henery
1999(3)
SA 421 (A) at 429 E - I and
Amod
v Multilateral Vehicle Accidents Fund
1999(4) SA 1319 (SCA) at 1324B - C.
3
Innes
CJ in
Union Government (Minister of Railways) v Lee
1927 AD
202
at 222. See also
Jameson’s Minors v Central South
African Railways
1908 TS 575
at 584;
Mankebe NO v AA Mutual
Insurance Association Ltd
1986(2) SA 196 (D&CLD) at 199C.
4
The
claim is brought by the estate of the deceased person, and it is a
condition for the existence of an action under what is
commonly
referred to as wrongful death statutes, that the circumstances of
the death of the deceased would have been such that
the deceased
himself, had he been injured and not killed, would have been
entitled to sue for his injury. The action is created
by statute.
(for example the Fatal Accidents Act of 1976 in the United Kingdom
and The Fatal Accident Act of 1959 in Western
Australia). The reason
is the rule in
Baker v Bolton
(1908) 1 Camp 493, namely that
“
In a civil court the death of a human being cannot be
complained of as an injury.”
5
Jameson’s
Minors v Central South African Railways
supra.
6
Union
Government v Lee
supra.
7
Evins
v Shield Insurance Co Ltd
supra at 838B.
8
Rondalia
Assurance Corporation of South Africa Ltd v Britz
1976(3) SA
243(T) at 246A.
9
Erasmus
Superior Court Practice
at B1 – 144J and the
authorities referred to in footnote 1.
10
AA
Mutual Insurance Association Ltd v Biddulph and Another
1976(1)
SA 725(A) at 735 D – E and
Boompret Investments (Pty) Ltd v
Paardekraal Concession Store (Pty) Ltd
1990(1) SA 347(A) at 359
D.
11
2010(2)
SA 356 (SCA).
12
At
para [9].
13
Paragraph
7.14 of the appellant’s particulars of claim.
14
Paragraph
[13] above.
15
“
The
wrongfulness enquiry focuses on whether or not the plaintiff’s
interest is entitled to protection from the defendant’s
conduct. The legal causation enquiry, in contrast, focuses on the
limitation of loss flowing from the wrongful conduct. It is
an
enquiry into closeness or remoteness of the particular harm. Both
elements function as control and balancing devices in order
to
establish a fair balance in fixing and limiting liability. Each has
its unique and distinct character which aims to strike
a fair
balance between the interests of the plaintiff and the defendant.”
Van der Walt and Midgley
Principles
of Delict 3
rd
ed
at page 204.
16
See
First National Bank of South Africa Ltd v Duvenhage
2006(5)
SA 319 (SCA) at para [2].
17
Fourway
Haulage SA (Pty) Ltd v SA National Roads Agency Ltd
2009(2) SA
150 (SCA) at para [32]. See also Neethling et al
Law of Delict
6
th
ed
at page 157 and 191.
18
Brand
JA in
Fourway Haulage SA (Pty) Ltd v SA National Roads v Agency
Ltd
supra at para [31]. See also
mCubed International (Pty)
Ltd and Another v Singer NO
2009(4) SA 471 (SCA) at para [27].
19
2006(3)
SA 138 (SCA).
20
At
para [10]. See further
Administrateur, Natal v Trust Bank van
Afrika Bpk
1979(3) SA 824(A) at 833A;
Minister of Safety and
Secutity v Van Duivenboden
2002(6) SA 431 (SCA) at para [12];
Gouda Boerdery BK v Transnet
2005(5) SA 490 (SCA) at para
[12] and
Van Eeden v Minister of Safety and Security
2003(1)
SA 389 (SCA) at para [9].
21
Minister
of Safety and Security v Hamilton
2004(2) SA 216 (SCA) at para
[16];
Van Eeden v Minister of Safety and Security
supra at
para [9];
Gouda Boerdery BK v Transnet
supra at para [12];
Minister of Safety and Security v Rudman
2005(2) SA 16 (SCA)
at para [58] and
Trustees, Two Oceans Aquarium Trust v Kantey &
Templer
supra at para [10].
22
Supra.
23
At
para [21]. See also
Delphisure Group Insurance Brokers Cape v
Kotze
[2011] 1 All SA 109
(SCA) at para [24].
24
Vivier
ADP in
Van Eeden v Minister of Safety and Security
supra at
paras [9] and [19].
25
See
paragraph [18] above.
26
Harms
JA in
Minster of Safety and Security and Another v Carmichele
2004(3) SA 305 (SCA) at para [44].
27
2007(3)
SA 121(CC).
28
At
para [42].
29
See
paragraphs [28] to [34] below.
30
Supra.
31
At
para [9].
32
Supra.
33
At
para [24].
34
Steenkamp
NO v Provincial Tender Board, Eastern Cape
supra at para [42].
35
See
Minister of Safety and Security v Van Duivenboden
supra at
para [21].
36
‘
1.1
Every individual member who believes that his or her work or
personal situation justifies him or her to be in possession of
a
state owned firearm when not on duty must submit a written
application in the form as per annexure “A” for
permission
to be in possession of a state owned firearm when not on
duty to the evaluation committee as his or her station or unit. It
is
the applicant’s duty to satisfy the committee as to the
merits of the application taking the factors as per paragraph 7
hereof into account.’
37
‘
4.1
An evaluation committee to deal exclusively with applications to be
in possession of state owned firearms by members of the
particular
station or unit, must be established at every station or unit.’
38
‘
7.1.12
Does the member enjoy a stable family or personal life? (Knowledge
of family or personal strive must be taken into account).’
39
‘
7.1.15
Does the member have a history of alcohol or substance abuse for
which he or she is receiving treatment (help) or for which
treatment
(help) is contemplated?’
40
Paragraph
7.1.16 of Provincial Order 3 of 1998
41
It
reads as follows: “In the event of a member to whom permission
to be in possession of a state owned firearm has been
given making
himself or herself guilty of serious misconduct, the permission can
be withdrawn with immediate effect by the station
commissioner or
unit commander. The relevant area commissioner or the Provincial
Commissioner can act likewise in the event of
a member attached to
the Area Commissioners office or Provincial Commissioners office
makes himself or herself guilty of serious
misconduct.
42
Harms
JA in
Minister of Safety and Security and Another v Carmichele
supra at para [41]. See also para [44].
43
In
the
Minister of Safety and Security v Van Duivenboden
supra
at para [22] this was considered to be a relevant factor in deciding
whether police officers who were in possession of
information that
reflects on the fitness of a person to possess firearms were under
an actionable duty to members of the public
to take reasonable steps
to act on that information in order to avoid harm from occurring.
44
This
was dealt with as a policy consideration by the Court in
Fourway
Haulage SA (Pty) Ltd v SA National Roads Agency Ltd
supra at
paras [23] and [24] of the judgment.
45
See
paragraph [44] below.
46
1966(2)
SA 428(A). See also
Ngubane v South African Transport Services
1991 1 SA 756(A)
at 760B;
Barnard v Santam Bpk
1999 1 SA 202
(SCA) at 213;
Minister of safety and Security v Rudman
supra;
Minister of Safety and Security v Hamilton
supra;
Premier,
Western Cape v Faircape Property Developers (Pty) Ltd
2003 6 SA
13(SCA)
at 36;
Van Duivenboden
supra;
Carmichele
supra;
Kruger v Carlton Paper of SA (Pty) Ltd
2002 2 SA 335
(SCA) at 341.
47
A
430 E – F.
48
1977(1)
SA 31(A) at 33G.
49
See
paragraph [18] above.
50
In
paragraph [30] of the Court
a quo
’s judgment.
51
Van
der Walt and Midgley
op cit
at page 177 to 178.
52
See
paragraph [23] above.
53
Supra
at 214 B.
54
2002(2)
SA 55 (SCA) at para [9].
55
[1980] HCA 12
;
146
CLR 40
(HCA).
56
Supra
at para [9].
57
See
paragraph [28] above.
58
[1963] UKHL 1
;
[1963]
AC 837.
59
At
857.
60
1966(2)
SA 266 (A).
61
At
272 F – G. See also
Standard Chartered Bank of Canada v
Nedperm Bank Ltd
1994 SA 747
(A) at 768G.
62
(214/2010)
[2011] ZASCA 32
(25 March 2011).
63
At
para [13].
64
Paragraph
[29] to [30] above.
65
Scott
JA in
Gouda Boerdery BK v Transnet
supra at para [14]. See
also
Ngubane v South African Transport Services
1991(1) SA
756 (A) at 776 F – G and
Minister of Safety and Security v
Van Duivenboden
supra at para [23].
66
Supra.
67
At
34 F – G.
68
Corbett
CJ in
International Shipping Co (Pty) Ltd v Bentley
1990(1)
SA 680 at 700F – H.
69
Van
der Walt and Midgley
op cit
at page 199.
70
(See
Meevis v Sheriff, Pretoria East
1999(2) SA 389 (T) at 396H;
Minister of Police v Skosana
1977(1) SA 31 (A) at 35 D –
F and
Minister van Veiligheid en Sekuriteit v Geldenhuys
2004(1) SA 515 (SCA) at para [33]).
71
From
the judgment of the Court
a quo
.
72
Supra.
73
At
para [43].
74
Supra.
75
At
paragraph [25].
76
Neethling
et al op cit
at page 187.
77
See
Minister of Safety and Security v Van Duivenboden supra at para [25]
and Minister of Safety. and Security v Carmichele supra
at para
[60].
78
Fleming
The Law of Torts 8
th
ed
at page 194
and 195.
79
Standard
Chartered Bank of Canada v Nedperm Bank Ltd
supra at 765A. See
also
Road Accident fund v Sauls
supra at para [12];
Minister
of Safety and Security v Hamilton
supra at para [42] and
Fourway
Haulage SA (Pty) Ltd v S A National roads Agency Ltd
supra at
para [33]
80
1994(4)
SA 1 (A)
81
At
18 E - G
82
Paragraph
[30] above.
83
see
paragraph [25] above
84
As
stated by Lord Denning MR (albeit in the context of the English law
of tort) in
Lamb v Camden London Borough Council
[1981] QB
625
(CA) at 636: “
The truth is that all these three –
duty, remoteness and causation – are all devices by which the
courts limit the
range of liability for negligence or nuisance. As I
said recently ‘. . . it is not every consequence of a wrongful
act
which is the subject of compensation. The law has to draw a line
somewhere’. Sometimes it is done by limiting the range of
the
persons to whom duty is owed. Sometimes it is done by saying that
there is a break in the chain of causation. At other times
it is
done by saying that the consequence is too remote to be a head of
damage. All these devices are useful in their way. But
ultimately it
is a question of policy for the judges to decide.”
85
Ebrahim
v Minister of Law and Order
1993 2 SA 559(T)
at 566;
OK
Bazaars (1929) Ltd v Standard Bank of South Africa Ltd
2002 3 SA
688
(SCA) at 697; see also
Van der Spuy v Minister of
Correctional Services
2004 2 SA 463
(SE) at 474.