Pieterse v Minister of Safety: Republic of South Africa (1696/05) [2007] ZANCHC 48 (27 July 2007)

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[2007] ZANCHC 48
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Pieterse v Minister of Safety: Republic of South Africa (1696/05) [2007] ZANCHC 48 (27 July 2007)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
Nr: 1696/05
Delivered:
27/07/07
In
the matter between:
CATHARINA
PIETERSE Plaintiff
And
MINISTER
LIASON & SAFETY IN THE
REPUBLIC
OF SOUTH AFRICA 1
st
Defendant
JOHN
DENZEL ORANJE 2
nd
Defendant
JUDGMENT
Tlaletsi
J:
Introdudction
The
plaintiff in this matter, Catharina Pieterse, is the wife of the
late Andrew Kenneth Pieterse (“the deceased) who was fatally
shot
on 20 December 2002 on the Loeriesfontein road, in the district of
Calvinia, by John Denzel Oranje, who was at the time a
member of a
Commando established as a part-time reserve component of the South
African National Defence Force. The plaintiff has
instituted an
action for damages against the defendants for damages arising from
the death of her deceased husband in her personal
capacity as well
as in her representative capacity as natural mother and guardian of
her children, Clifford Andrew Pieterse, Christelle
Audrey Pieterse
and Avril Juanita Pieterse who were minors then.
In
the process and before the trial of this matter commenced, two of
the three children became majors and the particulars of claim
were
accordingly amended. I ordered, on the application by the parties,
that the merits be separated and be determined first in
terms of
Rule 33(4) of the Uniform Rules of this court. The trial proceeded
between the plaintiffs represented by Mr Coetzee,
and the first
defendant who is represented by Mr Motloung, assisted by Mr Mene.
I
must point out that on the second day of the trial, it became
obvious from the plaintiff’s bundle that it contained a copy of
a
criminal judgment pertaining to this incident in which second
defendant was charged for two counts of murder and in which I

presided. I raised the issue whether I may now proceed with these
proceedings in the light of my involvement in the criminal
proceedings.
Both counsel submitted that I should proceed with the
trial since those proceedings are common cause and that the second
defendant
is not a party in these proceedings. Furthermore, they
assured me that none of the witnesses who testified in the criminal
trial
will be called in these proceedings and that neither of the
parties before me will be prejudiced by my presiding in these
proceedings.
Lastly, the parties are
ad
idem
that the facts in
this case are not in conflict with the factual findings made in the
criminal trial. The factual findings are
common cause. I therefore
on the above grounds proceeded to conclude the proceedings.
The Pleadings
In
the amended particulars of claim the plaintiffs based their case on
the following causes of action. I will restrict these matters
to
the issue that I have to decide at this stage of the proceedings
which only relate to negligence. The plaintiffs allege that
at all
relevant times the second defendant was in the employ of the first
defendant and acted within the course and scope of his
employment
with the first defendant as a rifleman, alternatively:
4.1 that the first
defendant was at all times the owner of a 9mm Calibre Star Parabellum
pistol with serial number B935475 and 14x9
mm rounds of ammunition
and magazine issued to the second defendant by the first defendant;
that the first defendant was aware that
alternatively, should have
been aware of the danger of the firearm; that second defendant was
not competent or qualified to handle
the firearm with safety and that
the first defendant was aware of such a fact, alternatively, ought to
have been aware thereof and
that first defendant allowed the second
defendant to keep in his possession and control the said firearm
outside his working hours;
that
the first defendant expressly, alternatively tacitly consented to
the second defendant using the firearm, alternatively,
the first
defendant with knowledge that the second defendant intentionally,
alternatively, negligently may shoot, allowed that
the second
defendant keep the firearm in his possession and exercise control
thereof;
that
the first defendant, contrary to its policies and standing
procedures, intentionally, alternatively, negligently allowed
that
the second defendant to, beyond official hours, alternatively
service hours, to have full possession and control over the
firearm.
that
the first defendant accepted the risk consequent to the issuing of
the firearm.
In
the plea, the first defendant admits that the second defendant was a
member of its Commando but denies any negligence on its
part. It is
specifically denied that the second defendant acted within the
nature and scope of his employment with the first defendant
during
the incident in question, that the second defendant was authorized
to use the firearm within the prescripts of the first
defendant;
that he was not authorized to intentionally or negligently, other
than within the scope of his authorization, to use
the firearm; that
he was authorized to be in possession and control of the firearm
outside of his official hours of duty. All
in all the liability of
the first defendant is denied. I preferred to refer to the
particulars of claim as well as the plea to
show which averments are
common cause and those that will require to be proved.
For
convenience, the bundles presented by the parties are referred to as
the plaintiff’s bundle and the defendant’s bundle respectively.

Counsel advised me that the bundles are accepted as the truth and do
not have to be proved and that I can take notice of the contents
thereof.
Oral
Evidence Presented
The
plaintiffs tendered the evidence of Leonard Eksteen Von Solms. He
is a 66 year old retired captain in the South African Police
Services from Cape Town. He moved to Calvinia in 1992 where he
became attached to the Calvinia Commando holding the rank of major.

He knew the second defendant as a rifleman in the Commando.
According to his knowledge, it was not usual for the SANDF to issue
9mm pistols to riflemen, as it was mainly an officer’s weapon.
Therefore, he testified, riflemen are not normally trained in
the
use and handling of 9mm pistols. He personally received training
for this weapon in the police services. He testified that
he has no
personal knowledge of the Standing Orders in the SANDF. He
confirmed that he knew that the second defendant was issued
with the
9mm parabellum pistol. He however does not know if a permit was
issued to him.
According
to him firearms were issued just before an operation to be
undertaken. Operations included roadblocks and tracing of
escaped
prisoners. As in the SAPS, a person to be issued with a firearm
had to be checked first if he was competent to handle
the firearm.
He does not know if same was done in the case of the second
defendant. To check if a person was competent entailed
ensuring
that he is going to keep the weapon safe, that he is not a violent
person and or that he does not have charges such as
assault,
robbery, etc. However, in the SANDF, unlike in the SAPS there was
no place to check these records. One only had to do
it himself.
The difficulty was that they had no access to the SAP 69 (Criminal
Record Centre). One could therefore not obtain
a member’s finger
prints if such a member is not charged for a crime. As a result, he
continued, it was not easy to pick up,
unless you had knowledge,
that a person was convicted of crime. He stated that one could make
enquiries about a persons violent
character from either friends,
family members and colleagues. They themselves did not have access
to personal files of members
in the SANDF. Only commanders had
such access.
Van
Solms testified that he initiated that something be done to help the
second defendant who was working directly under his command
as an
information gatherer. He told Col. Visagie that it be checked if he
could be issued with a firearm. He accompanied Col.
Visagie to
Upington to see Col. Barnard. The two spoke about the details in
his absence, as they were the commanders. He was
referred to a
certificate at page 102 of the plaintiff’s bundle which reads
“Werksindeling… Geweerskitter” and said that
it only proves
that he was trained on a R4 Riffle and not a 9mm Parabellum. In his
view, before a firearm is issued it has to
be established that he is
trained, and this information must be on his records and if it is
not there, his view is that there was
no official training.
Under
cross examination he confirmed that the reason why he saw the need
for the second defendant to be issued with a firearm if
possible, is
because there were threats on his life related to his work as a
Commando member. As his supervisor, he saw him having
this firearm
for atleast 6 months prior to the incident. He however, never asked
him if he had received training on the specific
firearm. The second
defendant’s duties entailed obtaining information on organized
crime syndicates which involved keeping surveillance
on dangerous
people. These people made death threats to himself, the second
defendant as well as Col. Visagie. He was cross examined
at length
to show that the second defendant had training from when he was a
permanent member of the SANDF on the use of different
firearms
including the 9mm pistol. It is not necessary to record this
evidence as Counsel for the plaintiff indicated later during
the
first defendant’s case that they do not dispute that he obtained
training and that it is not the basis of their case that
he was not
trained on the specific firearm. Von Solms confirmed that he was
not aware if the second defendant was at any stage
declared unfit to
possess a firearm. His evidence concluded the case for the
plaintiffs.
First
Defendant tendered the evidence of Johannes Pietrus Visagie. He was
the chief of the Calvinia Commando at the time and in
charge of all
the training and the activities of the Commando. He confirmed that
the second defendant reported to Von Solms who
in turn reported to
him on all the activities of the Commando including operations. He
was aware of threats on the lives of the
members. Druglords and
thieves once made direct threats to the second defendant that once
he went through the Commando gate they
will attack him. With the
assistance of the police, a recorder was placed on his cellular
phone (Visagi’s) to record the telephone
numbers of the callers
for identification purposes. He confirmed that on the
recommendation of Von Solms a firearm was issued
to the second
defendant after arrangements were made through his senior, Col.
Banard from Upington. When he issued the firearm
to second
defendant, he was satisfied that he had the necessary training as it
was a rule. The requirements that he had to comply
with were that a
person must be a good and credible member of the Commando and that
there was nothing funny or abnormal with him.
His own findings were
that the second defendant was a good, respectable and one of his
best members of the Commando. Von Solms,
he testified, also
confirmed to him that he had no problem with him and further that he
was a good Commando. He confirmed to him
that there was nothing
wrong with him that would prevent him from being issued with the
weapon.
Visagie
testified that he was obliged to issue a permit first before issuing
a firearm. The second requirement was that a person
must have a
bolted safe, or have a safe available to him to store the firearm if
it is not on his person. In this case a colleaque,
David Cupido,
made his safe available to keep the firearm that was to be issued to
the second defendant. At the time the second
defendant was still in
the process of buying a safe with the R180.00 he borrowed from
Visagie. Before a firearm was issued the
second defendant had to
sign an undertaking document over the control and handling of the
firearm. In this document,
inter
alia
, the second
defendant states that he has the necessary training on the weapon
issued to him, that he has not been previously declared
unfit to
posses a weapon by a court of law and that he knows the safety
features of the weapon. Apart from the undertakings and
conditions
contained in the document, he accepted that the weapon is issued to
him on condition that the weapon and ammunition
will be used for the
purposes of official duties, necessity and during a necessary
situation when properly on duty.
After
receipt of the weapon, the second defendant had to report every
Friday to present the weapon for inspection. The officer
who
inspected the weapon had to confirm by signing the permit. Visagie
testified that the weapon had to be kept at all times in
Cupido’s
safe, except when the second defendant was to participate in an
official operation. He confirmed that on 20 December
2002 a big
operation was arranged for Calvinia. Second defendant was given the
weapon to participate in the operation. He was
to keep an eye on
the so-called targeted
“drug
lords”
. The operation
was to start at 21H00 in and outside town. Second defendant was to
keep observation at certain points in town
as well as the movement
of targeted people. He testified that after hearing about the
shooting incident, he could not believe
it because he did not expect
it as according to him the second defendant had no problems. He
said the second defendant did not
shoot the deceased in the name of
the commando. He always believed that the weapon was safe in the
possession of the second defendant.
His evidence concluded the case
for the first defendant.
The
Parties’ Contentions
14.1 Mr Coetzee
contended, with regard to the main basis for the plaintiffs’ claims
that it is evident that the second defendant
was acting within the
course and scope of his employment in that he was issued with a
firearm for the purposes of participating in
the operation. That on
the second defendant’s evidence, he killed two people unlawfully
when he was on duty of keeping observation
as part of the operation
and no evidence was placed on record by the first defendant to
justify the killing of these people. He
submitted that no evidence
that excludes the application of the vicarious liability principle
was presented by the first defendant.
14.2
As to the alternative leg for liability, Mr Coetzee submitted that
the Commando was a support structure of the South African
Police
Services and it provided information on crime to the SAPS and were as
such, part of the SAPS. He argued that by issuing a
firearm to
second defendant, first defendant as an organ of state had a legal
duty to safeguard the public against violation of their
rights in
terms of Sec. 12(1) (c) of the
Constitution
Act 108 of 1996
,
which provides that everyone has the right to freedom and security,
which included the right to be free from all forms of violence
from
either public or private sources. He argued that second defendant
was negligent by omission, in that steps were not taken to
investigate whether second defendant was a proper person to be issued
with a firearm.
Mr
Motloung argued,
inter
alia,
that it is not
alleged in the particulars of claim that the firearm was issued
negligently, that the evidence does not support
a claim for
vicarious liability and that the first defendant acted in terms of
the standing orders applicable to issuing of firearms
to employees.
Legal Framework
and Analysis
In
general terms, in a claim for patrimonial loss arising out of a
delict, the plaintiff carries the onus to show that he or she
suffered harm which was wrongfully and culpably caused by the
defendant. See
Smit v
Abrahams
1992 (3) SA
158
(c) at 160;
The
law of South Africa
(LAWSA)
second edition Vol 8 Part 1 at p38. The particular grounds of
negligence must be set out in detail in the particulars of
claim
(Honikman v Alexandra
Palace Hotels (Pty) Ltd
1962 (2) SA 404
(c) at 406-407 B)
.
In cases where reliance is based on duty of care, the particulars
of claim must set out the facts that could or should have been
foreseen by the defendant.
The
plaintiff carries the onus to establish that a reasonable person in
the position of the defendant would have foreseen the reasonable
possibility of the act or omission injuring another person’s
property and resulting in that person’s patrimonial loss, that
the
reasonable person would have taken reasonable steps to guard against
such occurrence and that the defendant failed to take
such
reasonable steps. See:
Kruger
v Coetzee
1966(2) SA 428 (A)
at 430 E-F; Kruger v Carlton Paper of SA
(Pty) Ltd
2002 (2) SA
335
(SCA) at 431 H-I: [2002] 2 all SA (A);
Mister of safety
and Security v Van Duivenboden
2002(6) SA 431 (SCA) at
448 E-F; [2002] 3 all SA 215 (A)
.
The fact that harm is reasonably foreseeable does not necessarily
mean that the defendant was required to act to prevent it occurring.
In
cases of vicarious liability the legal position was laid as follows
in
Messina Associated
Carriers v Kleinhans
2001(3) SA 868(SCA) at 872 F-J:
“
It
is trite law that an employer is liable for the delicts of an
employee committed in the course and scope of the latter's
employment.
The rule is based on 'considerations of social policy'
(per Corbett CJ in Mhlongo and Another NO v Minister of Police
1978
(2) SA 551
(A) at 567H). Its origin lies no doubt in the need to
provide the victim of a delict with a defendant of substance able to
pay damages.
But even in the absence of an actual employer-employee
relationship the law will permit the recovery of damages from one
person for
a delict committed by another where the relationship
between them and the interest of the one in the conduct of the other
is such
as to render the situation analogous to that of an employee
acting in the course and scope of his or her employment or, as
Watermeyer
J put it in Van Blommenstein v Reynolds
1934 CPD 265
at
269, where 'in the eye of the law' the one was in the position of the
other's servant. In such a situation one is really dealing
with an
analogous extension based on policy considerations of the employer's
liability for the wrongful conduct of an employee. (See
Boucher v Du
Toit
1978 (3) SA 965
(O) at 972D - E.) Over the years the elements of
the legal relationship between employer and employee and the interest
of the one
in the conduct of the other have been isolated in order to
determine whether, in the absence of such a relationship, one person
should,
nonetheless, be held liable for a delict of another”.
In
that instance the plaintiff carries the onus to allege and prove, in
addition to the usual allegations to establish delictual
liability,
that the person who committed the delict was an employee of the
defendant; that the employee performed the delictual
act in the
course and scope of her or his employment and what the employee’s
duties were at the relevant time. See:
Van
der Berg v Coopers & Lybrand Trust (Pty)Ltd and Others
[2000] ZASCA 77
;
2001
(2) SA 242
(SCA) at H-259D. The employer shall not be liable where
the employee was engaged in a frolic of his or her own or doing
something
which was permitted to be done for his or her own purposes
but not employed to do for the employer unless it was incidental to

his or her employment. The situation, referred to as diviation
cases, was considered in various decisions in which the test
applicable
was developed. See in this regard
Feldman
(Pty) Ltd v Mall
1945 AD 733
and
Minister
of Police v Rabie
1986(1)SA
117(A). In
K v
Minister of Safety and Security
[2005] ZACC 8
;
2005 (6) SA 419
(CC) the court had to consider,
inter
alia,
whether the common
law position of vicarious liability need to be adapted or developed
so as to be in line with the Constitution.
The Court, per
O’Regan
J,
summarized the
position after considering the law on the subject in other
jurisdictions as follows at p441 G-J.
“
[44]
From this comparative review, we can see that the test set in Rabie,
with its focus both on the subjective state of mind of the
employees
and the objective question, whether the deviant conduct is
nevertheless sufficiently connected to the employer’s enterprise,
is a test very similar to that employed in other jurisdictions. The
objective element of the test which relates to the connection
between the deviant conduct and the employment, approached with the
spirit, purport and objects of the Constitution in mind, is
sufficiently
flexible to incorporate not only constitutional norms,
but other norms as well. It requires a court when applying it to
articulate
its reasoning for its conclusions as to whether there is a
sufficient connection between the wrongful conduct and the employment
or not. Thus developed, by the explicit recognition of the normative
content of the objective stage of the test, its application
should
not offend the Bill of Rights or be at odds with our constitutional
order.”
The learned Judge held
further that:
“
[45]
The common-law test for vicarious liability in deviation cases as
developed in Rabie’s case and further developed earlier in
this
judgment needs to be applied to new sets of facts in each case in the
light of the spirit, purport and objects of our Constitution.
As
courts determine whether employers are liable in each set of factual
circumstances, the rule will be developed. The test is
one which
contains both a factual assessment (the question of the subjective
intention of the perpetrators of the delict) as well
as a
consideration which raises a question of mixed fact and law, the
objective question of whether the delict committed is ‘sufficiently
connected to the business of the employer’ to render the employer
liable.”
Reverting
to the facts of this case I proceed to consider Mr Coetzee’s first
submission, as the main leg of this case, that the
second defendant
was issued with a firearm for the purposes of being part of an
operation; that the rest of the contingent was
already at the base
at the time and that there is no doubt that at that point in time
the second defendant was on duty and was
issued with a firearm for
that purpose that is, to keep observation. He submitted that the
evidence tendered by Visagie that second
defendant was on duty
should not be ignored despite the fact that it was introduced by the
defendant. He argued that at the time
the two people were shot, the
second defendant was on duty and the defendant has not placed any
evidence to justify the killing
of the two people and as such the
only inference to be drawn is that the first defendant is liable.
As
I have already indicated, the first defendant has denied in the plea
that the second defendant was at the time of the shooting
acting
within the course and scope of his employment. Visagie also
testified that
the
second defendant did not shoot these people in the name of the
Commando and was not employed to shoot the people. Both counsel
confirmed that I should take judicial notice of the judgement on the
criminal trial. This judgement was filed as part of the
plaintiff’s Bundle. The only judgement that is also part of the
plaintiff’s bundle that Mr Coetzee submitted that I should
ignore
as it is not part of the evidence, but that he will rely on during
argument is that of
Majiedt
J
in
Suzette
Irene Elmarie Nelson vs The Minister of Safety and Security and
another:
Case
No:1326/04
(unreported). He also apologized for having included the copy of
this judgement in the bundle of the evidence. I am
therefore, as Mr
Motloung, submitted to consider the circumstances under which the
deceased was killed.
The
killing of the deceased had nothing to do with the activities of the
Commando, the SANDF or SAPS. He was killed about 10 km
out of
Calvinia outside the road where he had parked his motor vehicle in
which he was with one male and one female persons. The
latter is a
former girlfriend of the second defendant and they had two children.
Second defendant had a suspicion that the two
had a love
relationship which he could not accept. The unlawfulness of this
killing as the parties have placed on record, is accepted
and not
put in dispute. The question that should be answered is whether,
the first defendant should be held vicariously liable
for the
actions of the second defendant under these circumstances.
From
what I have said already, it is clear that the second defendant was
issued with the firearm in order to protect himself against
people
who made threats on his life and for the purpose of the Command
Operations. He was authorised to keep the firearm in his
person and
when not in need to keep it in Cupido’s safe. It is also not in
dispute that on the day of the incident he was supposed
to report
for duty where he was to keep observation and to report to the
operation contingent. He deviated from his duties and
went on a
frolic of his own to settle what was his private matters. There is
no evidence of any connection between his duties
and the delict.
The people killed were neither suspects nor people who posed any
danger to his life. His subjective intention
at the time was not to
carry out his duties or act in the interests of his employer.
Applying the test for vicarious liability
and the deviation cases,
the only reasonable conclusion is that the first defendant cannot be
held liable.
The
alternative cause of action relied upon by the plaintiffs has some
merit. There is a legal duty placed on all organs of the
state to
safeguard the public against violations of the Constitutional
rights. Mr Coetzee argued that since the commander was
gathering
intelligence information for the benefit of the SAPS it must be
regarded as part of the SAPS. By this analysis, Mr Coetzee
submitted that the facts of this case are similar to the facts in
Van
Duivenboden
case (
supra
)
as well as the unreported case of this division in the
Nelson
case
that I have referred to. In both these decisions the Minister of
Safety and Security was found to be liable for the omission
by its
employees to hold an enquiry to determine the suitability of a
person who caused harm, to possess a firearm. Mr Coetzee
submitted
that there was a duty placed on the first defendant to ensure that
second defendant was a fit and proper person to be
issued with a
firearm. He submitted that a reasonable person in the position of
Visagie would have gathered sufficient information
to gather the
relevant information.
The
facts in
Van
Duivenboden
and the
Nelson’s
case are by far distinguishable from the facts of this case. In the
Duivenboden
case
,
plaintiff had instituted an action for damages for injuries he
sustained when he was shot by one Brooks who was licensed to possess
firearms. The respondent averred that the police acted negligently
in failing to take steps to deprive him of his licenced firearms
when there were sufficient grounds to do so by invoking the
provisions of section 11 of the
Arms
and Ammunition Act
75
of 1969
.
The Court on Appeal accepted that long before the respondent was
shot, various police officers were in possession of information
that
reflected upon Brooks fitness to be in possession of firearms which
came from his wife and that other members of the police
also had
direct knowledge of other facts as a result of previous incidents.
Brooks had, more than a year before respondent was
shot, while he
was in a drunken state, threatened to shoot himself and any person
who attempted to intervene, including the police.
The court held
that his actions warranted him being declared unfit to possess a
firearm after following the prescribed procedure.
In
Minister
of Safety and Security v De Lima
2005 (5) SA 575
(SCA) in the court had to determine whether the police had been
negligent in recommending that a firearm licence be issued to Dos
Santos in circumstances where he had disclosed in his application
for a firearm licence that an assault criminal charge against
him
had been withdrawn. The court held at 580 G-I that:
“
The
essential question was not whether Dos Santos had been convicted
of a crime. It was whether Dos Santos was a suitable person
to
possess a firearm and, in considering that question, the
circumstances under which Dos Santos came to be charged, and the
circumstances
under which the charge came to be withdrawn, obviously
required clarification.
So
far as the charge is concerned, it was submitted on behalf of the
appellant that Basson had acted reasonably inasmuch as only common
assault was allegedly committed by Dos Santos. This argument misses
the point. Of course a charge of, for example, murder would require
more detailed enquiries. But the circumstances under which even a
relatively minor assault was allegedly committed could very well
indicate that the person concerned had a short temper, was easily
provoked and quickly resorted to violence.”
In
this case the circumstances under which the second applicant was
issued with a firearm are different from the cases referred
to
above. In those instances the provisions of the
Arms
and Ammunition Act
75
of 1969
were
applicable. Furthermore, in both the
Van
Duivendoden
and
Nelson
the
court had to consider whether the omission on the part of the police
officers to conduct an enquiry, under the
Arms
and Ammunition Act
75
of 1969
to determine whether a person was fit to possess a firearm or to be
issued with the firearm was negligent. The mere fact that
the
Commando was gathering information to be used by SAPS does not on
its own suffice to regard second defendant as a member of
SAPS. In
the
De
lima
case the issue related to failure to investigate facts disclosed
which might influence the recommendation for the issuing of a
firearm licence. In
casu,
the second defendant was issued with a firearm in terms of the
provision of the SANDF Standing Orders. The provisions and
requirements
which are applicable in this SANDF have, according to
first defendant been complied with. Visagie testified that threats
to second
defendant demanded that he be issued with a weapon to
protect himself. Visagie when issuing the firearm satisfied himself
that
the second defendant had the necessary training to possess the
firearm, he made arrangements for the firearm to be kept in
Cupido‘s
safe and that he possessed no information at the time
that would make second defendant unfit to possess the firearm. The
relevant
section of the Standing Orders that had to be complied with
provide that(only the Afrikaans text was made available):
“
4.
Voorwardes
vir die Uitreiking en Gebruik van Militere Vuurwapens
Die
bedreigingsbehoefte, na aanleiding van die operasionele waardering,
bepaal of die uitreiking van ‘n militere wapen geregverdig
word al
dan nie.
Die
uitreiking van ‘n militere vuurwapen bly die prerogatief van die
bevelvoerder.
Beskikbaarheid
van voorraad, gekoppel aan die bedreigingsbehoefte, moet bepaal
watter tipe vuurwapen, en in watter howveelhede uitgereik
kan word.
5.
Vaster
Voorwaardes waaraan ‘n Lid moet Voldoen
a. Die
lid moet nie onbevoeg verklaar wees om ‘n vuurwapen te besit nie.
die
lid moet opleiding ontvang (het) in die hanteringsaspekte tov die
spesifiekke tipe wapen asook die wetlike aspekte tov die gebruik
daarvan.
Die
lid moet bewys lewer van voorgeskrewe toesluitfasiliteite (Kyk SALO
GS 4/53 dd 7 Jan 88) alvorens ‘n wapen uitgereik sal word.
Persone
wat itv wet 75 van 1964 deur ‘n hof ongeskik bevind is om ‘n
vuurwapen te besit, mag nie met ‘n wapen uitgereik word
nie.
Vuurwapenpermit.
‘n Vuurwapenpermit moet ingevolge die bepalings, prosedures en
voorskrifte soos vervat in par 16 en 17 van SAW
Voorraadvoorskrifte
Log 1, vol A1, pamphlet 7 dd 1 Okt 85 uitgereik word. ‘n Lid wat
die wapen aan sy person dra moet te alle
tye in besit wees van die
geldige permit vir die spesifiekte vuurwapen en moet dit op aanvraag
kan toon. Vuurwapenpermitte moet
jaarliks hernu word.”
The
relevant provisions relating to the withdrawal of the firearm are:
“
VEREISTES
VIR DIE TERUGNEEM VAN VUURWAPENS
Die
volgende Vereistes vir die Terugneem van Vuurwapens geld
:
Indien
enige een van die voorwaardes van uitreiking in par 4 of 5 nie meer
aan voldoen word nie.
Waar
enige (lid die wapen onverantwoordefik, of vir ‘n ander doel as
waarvoor die uitgereik is gebruik, bv jag, onregmatige dreig
van
persone, ens.
Waar
‘n lid met sy militere vuurwapen deelneem aan enige vorm van
para-militere aktiwiteit of in para- mifitere uniform betrokke
is,
al he thy nie sy militere vuurwapen gebruik of by hom gehad nie.
Waar
die bedreiging in ‘n spesifieke gebied so afgeneem het dat die
Kommandement Bevelvoerder van mening is dat die heersende
veiligheid
situasie nie die uitreiking van vuurwapens vereis nie.”
What
should be understood from these provisions is that the Commanding
Officer has the prerogative to decide whether a member should
be
issued with a firearm. The question that needs to be determined is
whether Visagie as a Commando Officer properly exercised
his
prerogative. The fact that he has a prerogative in my view,
presupposes that he has discretion. Such discretion should be
exercised in compliance with the Standing Orders and relevant
considerations.
The
question therefore is what a reasonable commander in the position of
Visagie would have done in the exercise of his prerogative.
Clause
5(a) states that a person should not be declared unfit to possess a
firearm. Clause 5(d) states that the person should
not have been
declared unfit in terms of Act 75 of (1964) to possess a firearm by
Court. Mr Coetzee correctly pointed out that
the legislation
referred to is the incorrect one and does not relate to firearms.
It
is common cause that the issuing of the type of the firearm in issue
was unusual to persons in the position of second defendant.
Visagie
also conceded that since this was a special dispensation, special
procedures had to be followed. In this regard he testified
that it
is for this reason that he had to approach his senior, Col. Barnard
for authority. Having obtained the authority it was
left to him to
exercise his prerogative. Visagie conceded under cross examination
that he did not properly exercise his discretion
to ensure that
clauses 5(a) and 5(d) have been complied with. He also accepted
that had he perhaps asked for security clearance
or taken steps to
check if second defendant had previous convictions, the position
would have been different.
It
is common cause that the second defendant had previous convictions
which included the following. Robbery in 1984, two counts
of
Assault in 1993, Assault in 1994, Malicious Damage to Property in
1998 and Assault in 1998. He conceded which I find appropriate,
that had he known of these previous convictions, he would not have
issued the firearm to him. He however, in re-examination stated
that the dangerous situation of the second defendant would have in
any case outweighed his previous record and justify the issuing
of
the firearm. This belated attempt to justify his conduct, fails to
take into account the fact that he did not consider other
alternatives to issuing a firearm. Von Solms in this regard,
testified that had he been aware of the previous records of second
defendant, he would not have allowed him to be considered for the
issuing of a firearm. He would rather have relieved him of his
duties in the Commando. This approach is more sensible as it would
not put members of the public at the risk of being killed only
to
gather information on crime.
Visagie
had an opportunity to do an investigation once he became was aware
that second defendant had been found guilty of riotous
and violent
conduct in the Commando by a disciplinary tribunal. The only excuse
provided by Visagie for not taking this into account
is that second
defendant did not sign in the file to accept this conviction.
Whether he signed for it or not is irrelevant. What
is important is
that the person who he regarded as exemplary in the commando had
this blemish in his record. This should have
served as a signal to
Visagie that all may not be gloomy with the second defendant as he
thought. The fact that he had been convicted
should have been
investigated to determine whether he is fit to posses the firearm.
I am mindful that one should be cautious against
being influenced by
the insidious subconscious influence of
ex-post
facto
knowledge. First
defendant had ample time to consider his decision which was not a
split second decision.
Since
the weapon was issued to the second defendant in unusual
circumstances, that is, not only for operational purposes but also
to keep it for his protection, his position was analogous to that of
an ordinary person issued with a firearm in terms of the firearm’s
legislation. In that instance, one would expect the officer clothed
with the prerogative to be more cautious and careful. He
has a duty
to obtain all the necessary information regarding the character of
the member, not only in the Commando but also in
the community for
him to properly exercise his prerogative and discretion.
A
reasonable man in the position of Visagie would have satisfied
himself that second defendant was a competent person to be issued
with a firearm and failure to do so is a negligent omission.
Furthermore, a reasonable man in the position of Visagie with the
knowledge that second defendant had a disciplinary conviction of
riotous and violent conduct, would have foreseen that issuing
a
firearm under these circumstances and allowing the use thereof even
after official hours to protect himself, creates a reasonable
possibility of harm being caused and would have taken steps to guard
against such foreseeable harm. Finally, Visagie conceded
that a
firearm is a dangerous weapon that may cause harm and that he is
aware of the strict conditions laid down in the legislation
controlling firearms. It is not a valid reason that he could not do
an enquiry at the SAPS Criminal Record Centre if there was
no
criminal investigation conducted. The facility was available and no
attempt was made to enquire on the criminal record of the
second
defendant. Relying only on his superficial knowledge of second
defendant was not sufficient at all. In my view, there
is a duty on
the second defendant to ensure that when issuing weapons such as
firearms to its members the public is not exposed
to risk.
Reasonable care should always be taken to ensure that members of the
public are not exposed to harm. Certainly in this
case, the second
defendant was not a fit and proper person to be issued with the
firearm given his record of previous convictions
in the Commando.
The record says a lot about his temper.
I
therefore find that in the circumstances of this case the first
defendant should be liable for the damages proved or agreed upon,
arising out of the killing of the deceased in this matter. There is
no reason why costs should not follow the results.
ORDER
In the result I make
the following order:
The
first defendant is ordered to pay to the plaintiffs such damages as
they are able to prove arising out of the killing of the
deceased.
The
first defendant is to pay the costs of this trial.
___________________
L
P TLALETSI
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION