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[2011] ZAKZDHC 50
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Basdew NO v Minister Safety and Security (14271/2007) [2011] ZAKZDHC 50; 2012 (2) SACR 205 (KZD) (4 November 2011)
IN THE KWAZULU-NATAL
HIGH COURT, DURBAN
REPUBLIC OF SOUTH
AFRICA
Case No: 14271/2007
In the matter between
Michelle Julian Basdew
N.O.
…..................................................
Plaintiff
and
Minister of Safety and
Security
…..........................................
Defendant
JUDGMENT
4 November 2011
Steyn J
[1] This is an action for
the loss of support that arose from an incident where a mother of
three minor children was shot and killed
by her ex-husband. The case
focussed once more on domestic violence and the impact it has on a
family. The deceased was killed
at a time when she sought protection
from the South African Police.
[2] The plaintiff is
Michelle Julian Basdew N.O., an adult female advocate, who acts as,
and sues in her capacity as
curator-ad-litem
to the minor
children M V N, a boy born on 24 June 1989, Z N, a girl born on 24
February 1991, and M P N, a girl born on 2 August
1993. The defendant
is the Minister of Safety and Security and the employer of two
policemen who in the course and scope of their
employment as
employees of the defendant responded to a call to assist a member of
the public, Ntombifikile Ngidi (hereinafter
referred to as the
deceased).
[3] At the time when the
matter was heard the court was called upon to decide on the issue of
liability only, since the parties
agreed that the merits be separated
from the quantum of the claim.
[4] On 8 August 2011, the
plaintiff called 3 witnesses to testify in support of the claim.
After the testimony of the plaintiff’s
witnesses the plaintiff
closed its case and the defendant thereafter elected to close its
case without adducing any evidence.
In pursuit of the claim
the plaintiff relied on a number of grounds of negligence which are
inter alia
encapsulated in the following particulars of claim,
averring that the police officers were aware:
“
4 (a) [i]
of the abuse being perpetrated against
the deceased by her husband on the
said date;
[ii] of the threats made by Vusi
against the deceased’s life;
[iii] that Vusi was in possession
of a firearm, alternatively should have reasonably suspected that
Vusi was in possession of a
firearm;
[iv] that Vusi had threatened to
kill the deceased by shooting her with his firearm;
[v] that they were summoned by the
deceased to protect her from the abuse perpetrated against her by
Vusi on the said date and the
threats against her life;
[vi] that according to the deceased
she previously obtained a protection order against Vusi.
(b) On the said date, the said two
police officers
failed and or neglected to protect
the deceased from being shot with a firearm by Vusi in, inter alia,
the following manner:
[i] they failed and /or neglected
to search and dispose Vusi of his firearm;
[ii] they failed and /or neglected
to keep Vusi constrained or within sight, alternatively away from the
deceased;
[iii] they permitted Vusi, whilst
armed with his firearm, to enter the deceased’s bedroom, whilst
she was there on her own
and without protection
and in addition
7 (a) The said police officers
failed and/or neglected
to exercise reasonable care to
prevent the deceased from being shot and killed when there was a
legal duty on them to do so;
(b) The said police officers failed
and/or neglected to take reasonable or adequate steps to prevent the
assault and killing of
the deceased when by exercising reasonable
care they could have done so;
(c) The said police officers, in
the circumstances, acted wrongfully, negligently and unlawfully.”
The defendant in its plea
denied that the officers were negligent.
[5] Before the trial
commenced a bundle was handed in containing
inter alia
the
police docket that related to the deceased’s murder. The
parties agreed at the pre-trial conference that the docket could
be
handed in as proof of what it was.
[6] Plaintiff indicated
that evidence would be adduced that on the night of 11 February 2004
the deceased’s screams were heard
by her son, M N. On further
investigation she could not be found in the yard or on the property.
Much later the deceased, however,
returned to the house in the
company of two policemen. The policemen were informed of the fact
that the ex-husband owns a firearm
before arriving at the couple’s
home. The policemen, despite being asked to protect the deceased,
neither searched the ex-husband
nor did they keep him under
observation in the house.
[7] The three witnesses
that testified on behalf of the plaintiff’s case were Ms D
Ngidi, Mr M N and Z N.
Ms Dorris Ngidi’s
evidence in short was that she is the sister in law of the deceased.
The deceased arrived at her home at
midnight, scantly dressed in a
night dress and informed her that there was a disagreement between
her and her ex-husband, Vusi,
and that she feared that he might shoot
her. The deceased told her that she informed the police, and whilst
at her house, the deceased
contacted the police and gave them
directions to the house. She was present when the policemen arrived
and when the deceased told
them that she had run away from home. The
deceased asked the police to accompany her to her house to collect
her belongings and
her car. She informed the police that there were
problems between her and her ex-husband. She also informed them that
her ex-husband
has a firearm. The police also asked her whether her
brother, Vusi, had a firearm and she confirmed that he did.
She informed the police,
as they were leaving, that she hopes that the deceased would be safe
with them. In cross-examination she
conceded that she was not certain
whether the deceased told the police that she was threatened by her
ex-husband. She was, however,
adamant that the deceased informed the
police that she was scared of her ex-husband because he has a
firearm.
[8] The second witness, M
N, is the son of the deceased and the brother of two younger sisters.
He heard his mother crying and rushing
out of the home. He then went
to look for her. He asked his father, Vusi, who was laying down, what
had happened and his father
just said his mother was crazy. He
decided to wake his sisters and go and look for his mother. The
children asked their father
to go and search for their mother. Their
father left in the white Jetta that belonged to their mother but
returned after a while
and said that he could not find her. His
father told them to go back to sleep. Later that night his father
woke them up and said
they must come and see that their mother is at
the house to get him arrested. The whole family then went to the
front gate and
his father opened the gate for his mother and the
police.
One of the policemen then
asked his father whether he has a firearm and his father denied it.
The police then informed his father
that his wife is there to fetch
her belongings and her car. His father indicated that it is in order.
They all entered the house
and the policemen went and sat in the
lounge, whilst his mother went to the bedroom followed by his two
sisters. He proceeded to
his sister’s bedroom and left his
father in the company of the policemen.
After a few minutes
gunshots went off and he ran out of the house. Before he exited the
house he noticed that his father was sitting
on the bed in the main
bedroom. He found his sisters and the policemen outside the house.
When he noticed the policemen it appeared
that they were coming
towards the house. The policemen neither searched his father when he
said he did not have a gun on him nor
did they put any other
questions to him regarding the firearm.
[9] Z N, the sister of M
N, also testified and confirmed that her mother screamed before
exiting the house. She explained how they
searched for her mother.
Later that night she was woken by the arrival of the police at their
house. Her mother was in the company
of the police. Her mother was
crying and the policemen told her father that his wife is there to
collect her goods. She confirmed
that one of the officers asked her
father whether he was in possession of a firearm, but he denied it.
The police told her mother
to go and fetch her belongings. At that
moment her father was standing with the police inside the house.
She followed her mother
to the bedroom where her mother was pulling a suitcase from a
cupboard. Her father then came into the room,
pulled out his firearm
from under his belt and fired shots at her mother without saying a
word. She started hitting her father
with a cell phone charger which
she had in her possession. She then ran out of the house and noticed
that the police officers were
no longer inside the house but at the
gate. The officers asked them what had happened. The police ordered
them to stand behind
the van. They called upon her father to come out
and hand over his firearm but he failed to respond. He only reacted
when she called
out his name.
[10] This concluded all
the evidence on behalf of the plaintiff. Defendant closed its case
without tendering any evidence. Adv Ngcobo,
on behalf of the
plaintiff, asked that the defendant be held liable since there was a
legal duty on the defendant to act positively
to prevent the harm
from occurring and the defendant failed to comply with that duty. Adv
Khuzwayo, acting on behalf of the defendant,
argued that in the given
the circumstances there was no basis laid before the court that
showed that the officers were negligent.
[11] No criticism can be
levelled against the witnesses of the plaintiff; they were consistent
in their testimony. I am satisfied
that all three of the witnesses
were not only reliable but also trustworthy. The plaintiff succeeded
in establishing a
prima facie
case. The defendant had to
answer to the case but elected not to call the officers. The
plaintiff’s evidence therefore stands
unchallenged. The
question that remains is whether the evidence of the plaintiff proves
that the defendant is liable.
Legal Framework
[12] Since 1975 it has
been recognised in our law that an omission falls within the concept
of voluntary conduct.
1
What is important in this
matter is the wrongfulness of an omission under circumstances where
there was a positive duty on the officers
to act in accordance with
their duties. An enquiry into the reasonableness of the conduct of
the police would therefore be necessary.
It is also necessary to
determine whether there is a factual causation between the police’s
omission and the deceased’s
death.
2
The most common test to
use in determining factual causation is the sine
qua
non
test.
3
In determining the
wrongfulness it is also necessary to consider whether the omission of
the officers to not seize the firearm of
Mr Ngidi would have lead to
the foreseeable harm, i.e. the death of Mrs Ngidi as caused by him.
In
Gouda
Boerdery BK v Transnet Ltd
4
Scott JA stated the test
as follows:
“
. . .
Where the element of wrongfulness gains importance is in relation to
liability for omissions and pure economic loss. The inquiry
as to
wrongfulness will then involve a
determination
of the existence or otherwise of a legal duty owed by the defendant
to the plaintiff to act without negligence: in
other words to avoid
negligently causing the plaintiff harm.
This will be a matter for judicial judgment involving criteria of
reasonableness, policy and, where appropriate, constitutional
norms.
If a legal duty is found to have existed, the next inquiry will be
whether the defendant was negligent. . . . The courts
have in the
past sometimes determined the issue of foreseeability as part of the
inquiry into wrongfulness and, after finding that
there was a legal
duty to act reasonably, proceeded to determine the second leg of the
negligence inquiry, the first (being forseeability)
having already
been decided. If this approach is adopted, it is important not to
overlook the distinction between negligence and
wrongfulness.”
(Original footnotes
omitted, my emphasis)
[13] Our Supreme Court of
Appeal has dealt in a number of cases with the legal duty of police
officers in particular not to cause
harm or to prevent harm to
others.
5
An omission will cause
liability if the omission is culpable as determined by the test as
set out in
Kruger
v Coetzee
,
6
that is whether a
reasonable person in the position of the defendant would not only
have foreseen the harm but would also have acted
to avoid it.
7
[14] The nature of the
minor children’s action for loss of support has been endorsed
by the appellate division.
In
Suid-Afrikaanse
Nasionale Trust en Assuransiemaatskappy Bpk v Fondo
8
Botha AJA (as he then
was) referred with approval to the above statement of Innes CJ saying
that –
“… ‘
n
kenmerk van die regsmiddel [i.e. the dependant’s action for
loss of support], wat dit terloops ook van ‘n suiwer aksie
onder die lex Aquilia onderskei, die anomalie is dat dit gebaseer is
op ‘n versuim om sorg te dra, nie teenoor die aanleggers
nie,
maar teenoor die oorledene, terwyl die vorderingsreg nie aan die
oorledene of sy boedel ontleen word nie, maar regstreeks
aan sy
afhanklikes op grond van hul eie vermoënskade wat vloei uit hul
verlies van onderhoud as gevolg van die dood van die
oorledene
waarvoor die wandader aanspreeklik is, verleen word.”
9
[15] Reverting to the
facts of this case it is evident that both officers were clearly
engaged in the business of their employer
when the
delict
was committed. First, the
policemen were under a general duty to prevent and protect members of
the public against crime. Second,
they offered assistance to Mrs
Ngidi which she had accepted and therefore the police owed a special
duty to her.
10
There were clear warning
signs to the police that the ex-husband of the deceased posed a
serious threat to her physical safety.
She was fearful and informed
them that her ex-husband was in possession of a firearm. The fear was
so real that she required their
police protection to go to her own
house to fetch her belongings. The evidence of Mrs Doris Ngidi
confirmed the statement of the
deceased that Vusi Ngidi had a
firearm. Under these circumstances it is reasonable to expect that
the police officers would have
done more than just putting one
question to the ex-husband, i.e. whether he was in possession of a
firearm. Reasonable policemen
would have guarded the husband and not
let him out of sight, given the earlier information relayed to them
by the deceased and
Mrs Doris Ngidi. Given the aforesaid information
it is reasonable to expect of an officer to search the person whom
allegedly has
a firearm in his possession. In the premises I am of
the view that it was reasonably foreseeable to the officers that harm
may
ensue to the deceased if they do not seize the firearm or prevent
the ex-husband from using it. The failure to search him and to
guard
him and to prevent him from getting to the deceased, make the
defendant liable on a balance of probabilities.
[16]
Order
16.1 The defendant is
found to be liable for all such damages as may be proven by the
plaintiff or as agreed between plaintiff and
defendant.
16.2 The defendant is
ordered to pay the plaintiff’s costs of this action.
____________________________
Steyn J
Date
of Hearing: 10 August 2011
Date
of Judgment: 4 November 2011
Counsel
for the Plaintiff: Adv M Ngcobo
Instructed
by: Dickinson & Theunissen Inc.
Counsel
for the Defendant: Adv T Khuzwayo
Instructed
by: State Attorneys Office
(KwaZulu-Natal)
1
See
Minister van Polisie v Ewels
1975 (3) 590 (A) at 597A and
Geldenhuys
v
Minister
of Safety and Security
[2002] 3 All SA 82
(C).
2
See
Siman & Co (Pty) Ltd v Barclays
National Bank Ltd
1984 (2) SA 888
(A)
for
a
distinction between factual and legal causation.
3
See
Minister of Police v Skosana
1977 (1) SA 31
(A) at 35D-F.
4
2005
(5) SA 490
(SCA) para 12.
5
See
Minister
of Safety and Security and Another v Carmichele
2004
(3) SA 305
(SCA);
Minister
of Safety and Security v Van Duivenboden
2002
(6) SA 431
(SCA).
Minister
of Safety and Security v Hamilton
2004
(2) SA 216
(SCA);
Van
Eeden v Minister of Safety and Security
(Women’s
Legal Centre Trust, as Amicus Curiae)
2003
(1) SA 389
(SCA);
Minister
van Veiligheid en Sekuriteit en ʼn ander v Geldenhuys
[2003] 4 All SA
330
(SCA);
Minister
of Safety and Security v Madyibi
2010
(2) SA 356
(SCA); and
Brooks
v Minister of Safety and Security
2009
(2) SA 94
(SCA).
6
1966
(2) SA 428
(A).
7
Van
Duivenboden supra
at 441 F-H.
8
1960
(2) SA 467
(A) at 471H—472A.
9
Also
see
Brooks
v The Minister of Safety and Security
[2007]
4 All SA 1389
(C) at para 17;
Legal
Insurance Co Ltd v Botes
1963
(1) SA 608
(A).
10
See
The
Minister of Safety and Security v F
[2011]
ZASCA 3
(22 February
2011)
para 17 fn 37.