Brooks v Minister of Safety and Security (7333/2003) [2007] ZAWCHC 51; [2007] 4 All SA 1389 (C); 2008 (2) SA 397 (C); (20 September 2007)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2007
>>
[2007] ZAWCHC 51
|

|

Brooks v Minister of Safety and Security (7333/2003) [2007] ZAWCHC 51; [2007] 4 All SA 1389 (C); 2008 (2) SA 397 (C); (20 September 2007)

Reportable
IN THE HIGH COURT OF SOUTH AFRICA
[CAPE OF GOOD HOPE PROVINCIAL DIVISION]
CASE NO: 7333/2003
In the matter between:
AARON JONATHAN BROOKS Plaintiff
and
THE MINISTER OF SAFETY AND SECURITY
Defendant
JUDGMENT DELIVERED ON 20
th
SEPTEMBER 2007
HJ ERASMUS, J
Introduction
[1] This case arises from the same events that gave rise
to the claim for damages in
Minister of Safety
and Security v Van Duivenboden.
1
On 21
st
October
1995 Neil Brooks (“Brooks”), the natural father of the plaintiff
in this case, opened fire on a number of people, killing
three of
them, including his wife and daughter, and wounding five others,
including the plaintiff, who was fourteen years old at
the time, and
Van Duivenboden, a neighbour. As a result of this shooting incident,
Brooks was charged and convicted of various crimes,
including murder,
and was sentenced to twenty years’ imprisonment. He is serving his
sentence at present. Van Duivenboden’s subsequent
claim for damages
against the Minister of Safety and Security was upheld by the Supreme
Court of Appeal.
[2] Arising from the shooting incident and the
incarceration of his father, the plaintiff instituted a claim for
damages against the
Minister of Safety and Security. The plaintiff
alleges that prior to the shooting incident on 21
st
October 1995 there were several incidents from which a number of
police officers obtained direct knowledge of the fact that Brooks
was
unfit to possess a firearm. They took no steps to have him declared
unfit to possess a firearm.
[3] The
plaintiff further alleges that the police officers “owed all
persons who may be prejudicially affected should … Brooks
use his
weapons to kill or injure others”, a legal duty to initiate the
procedure contemplated in section 11 of the Arms and Ammunition
Act
75 of 1969 to have Brooks declared unfit to possess a firearm. The
plaintiff alleges that he was a person who would be prejudicially
affected by such conduct in that –
he was dependent for support on his father (Brooks),
who was under a legal obligation to, and did, support him;
his father’s ability to support him could be affected
by such an incident as he might be convicted of a crime and be
incarcerated;
should his mother be killed or injured in such an
incident, he would likewise lose her support which she was under a
legal obligation
to, and in fact did provide, the plaintiff; and
the plaintiff witnessed the incident and was injured
therein.
[4] The
plaintiff further alleges that the police officers breached their
duty of care by failing to initiate the procedure contemplated
in
section 11 of the Arms and Ammunition Act 75 of 1969. The consequence
of the breach was that –
on 21
st
October 1995 Brooks had firearms readily available to him with the
result that the shooting incident took place which would not
have
occurred but for the breach;
Brooks was charged and convicted of various offences,
including murder, as a result of which he was given a sentence of
twenty years’
imprisonment, which he is serving at present;
Brooks has been rendered permanently unable to support
the plaintiff, as he would otherwise have done;
the plaintiff has been permanently deprived of the
support of his mother.
[5] The
plaintiff accordingly claims damages in the amount of R2 824 000.00
which is calculated as follows:
Emotional shock and trauma arising from the
the fact that he witnessed the incident, and
from
the permanent loss of his parents R90 000.00
General damages for pain and suffering as a
result of the injury he sustained in the
incident
R40 000.00
The loss of support of his father R168 000.00
4. The loss of support of his mother R126 000.00
The loss of a proper education opportunity
as a result of the loss of support and
accordingly
a lesser income from a lower
level
of employment R2 400 000.00
[6] The
plaintiff’s claim for loss of support thus has three components:
The claim for loss of support arising from the death of
his mother.
The claim for loss of support arising from the
incarceration of his father.
The claim for “loss of a proper education opportunity
as a result of the loss of support”; that is, a claim which arises
from
both the death of his mother and the incarceration of his
father.
The exception
[7] The
defendant excepted to the plaintiff’s claims for loss of support
and the loss of a proper education opportunity as a result
of the
loss of support. The grounds of exception are the following:
The defendant’s servants did not commit any delict
against the plaintiff’s breadwinner;
The plaintiff has not suffered damage.
The defendant’s servants did not act wrongfully
towards the plaintiff’s breadwinner.
The defendant’s servants did not act negligently
towards the plaintiff’s breadwinner.
The omission on the part of the defendant’s servants
was not the cause of the plaintiff’s loss.
[8] In
paragraphs 5 and 6 of the Notice of Exception it is made clear that
Brooks is the “breadwinner” to whom reference is made.
Neither in
the Notice of Exception, nor in argument before me, was the legal
foundation of the plaintiff’s claims for loss of support
due to the
death of his mother placed in dispute. In argument it was submitted
that the exception should be upheld in respect of
the claim for loss
of support arising from the incarceration of Brooks, and in respect
of the claim for loss of an education opportunity
as a result of the
loss of support in so far as it applies to Brooks.
[9] Mr
Van Riet, SC, who appeared with Mr Roux, SC for the plaintiff,
submitted that seeing that the plaintiff’s claim for loss
of a
proper education opportunity results from the combined effect of the
loss of support from his mother and from his father, the
efficacy of
the claim cannot be determined on exception without the hearing of
evidence. In particular, it is submitted, part of
a claim cannot be
expunged by way of exception, for an exception is raised not against
a claim but against a pleading which does
not disclose a cause of
action.
[10] The
plaintiff’s claim in paragraph 17.5 of the Particulars of Claim for
“loss of a proper education opportunity as a result
of the loss of
support” in an amount of R2 400 000.00 is a quantification of a
loss that derives from two separate and distinct
sources; namely,
from the claims for loss of support arising from the death of his
mother and from the incarceration of his father.
These are separate
and distinct claims, and each may be the target of an exception if
warranted by rule 23(1).
[11] In
his argument, Mr Schippers, SC, who appeared with Mr Jaga for the
defendant, did not deal with (b) and (d) above in paragraph
[7] as
separate grounds of exception. He dealt with the matters in issue
under three heads; namely, (i) whether the defendant’s
servants
committed a delict against the plaintiff’s breadwinner; (ii)
whether the particulars of claim establish wrongfulness,
and (iii)
the issue of causation. Those are the issues which pertinently arise
from the exception and I shall deal with them under
the same heads.
[12] It is perhaps necessary to point out, as Mr
Schippers did at the outset of his argument, that while it is trite
that grounds
of exception raise questions of law which fall to be
decided on the particulars of claim as they stand,
2
this case is unique in that the Supreme Court of Appeal in
Minister
of Safety and Security v Van Duivenboden
3
has already made factual findings regarding the incident of 21
st
October 1995 and other incidents referred to in the plaintiff’s
particulars of claim, as well as certain findings in regard to
wrongfulness, negligence and causation.
No delict against the plaintiff’s breadwinner
[13] The
defendant’s case, in a nutshell, is that the defendant’s servants
did not commit any delict against Brooks, and that
the plaintiff’s
claim is, therefore, not actionable under a dependant’s common law
action for loss of support. Mr Schippers submitted
that on this
ground alone, the exception should be upheld.
[14] The defendant says that the dependant’s action
for loss of support in our law is anomalous and
sui
generis
: the dependant’s action is based on
a delict committed against the breadwinner. The defendant further
says that although the dependant’s
action for loss of support has
been extended to cater for new situations, the principles upon which
it is based have survived.
[15] The
plaintiff’s stance is that the dependant’s action arises from a
breach of a legal duty owed to the dependant and not
a wrongful act
as against the breadwinner. In other words, the delict that is
required to be committed to trigger the dependant’s
action is one
against the dependant and not the breadwinner.
[16] In
Jameson’s Minors v
Central South African Railways
4
Innes CJ pointed out that the origin of the
dependant’s remedy “must be looked for in the early German laws,
and not in the laws
of Rome”. The learned Chief Justice continued:
5
But whatever the early foundation of this action, it is clear that
the Dutch writers came to regard it as a remedy embraced within
the
scope of the
utilis actio
under the
lex Aquilia
. It was
a right concerning the existence of which there could be no doubt; it
was founded on delict, and they very naturally regarded
it for
practical purposes as a form of relief depending upon the existence
of
culpa
and flowing from the extended operation of the
equitable Aquilian action. That Voet was of this opinion is manifest
(
Ad Pandectas
, 9, 2, 11), and there are other writers who
agree with him. In that form it has come down to us. But while on the
one hand it resembles
the ordinary action for personal injury in that
it is based upon
culpa
, and while the breach of duty essential
to its existence is the breach of a duty owed at the time of the
wrongful act to the injured
man; yet, on the other hand, the
compensation claimable under it is due to third parties, who do not
derive their rights through
his estate, but on whom they are
automatically conferred by the fact of his death. The action is one
sui generis
; and probably its anomalous character may be
accounted for by reference to its original source …
[17] This exposition of the nature and scope of the
dependant’s action for loss of support in our law was subsequently
expressly
endorsed by the Appellate Division.
6
Thus in
Suid-Afrikaanse Nasionale Trust en
Assuransiemaatskappy Bpk v Fondo
7
Botha AJA (as he then was) referred with approval to the above
statement of Innes CJ saying that –
… ‘n kenmerk van die regsmiddel [ie 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.
[18] In
Legal Insurance Co Ltd v
Botes
8
Holmes JA says that dependant’s action for
loss of support –
… has continued its evolution in South Africa – particularly
during the course of this century – through judicial pronouncement,
including judgments of this Court, and it has kept abreast of the
times.
The continued evolution of the remedy through judicial
pronouncement concerned mainly the extension of the class of
dependants entitled
to bring the action. Thus in
Union
Government (Minister of Railways and Harbours) v Warneke
9
the action was extended so as to give an action to a husband who had
suffered loss through the death of his wife. In
Abbott
v Bergman
10
the action was extended so as to enable a husband to claim for
patrimonial loss he sustained through non-fatal injury to his wife.
In
Santam Bank v Henery
11
the action was extended to cover a divorced woman entitled to
maintenance from the deceased in terms of an order granted under
section 7
(2) of the
Divorce Act 70 of 1979
. In
Amod
v Multilateral Motor Vehicle Accidents Fund (Commission for Gender
Equality Intervening)
12
a contractual right of support arising out of
a marriage in terms of Islamic law was, within defined parameters,
recognised for purposes
of the dependant’s action. In
Du
Plessis v Road Accident Fund
13
it was held that the same-sex partner of the deceased in a permanent
life relationship similar in other respects to marriage, in
which the
deceased had undertaken a contractual duty of support to him, was
entitled to claim damages for the loss of that support.
[19] In
Santam Bank v Henery
14
Nienaber JA expressly declined
15
to embark on a jurisprudential analysis of the nature of the
dependant’s action, the only question before the Court being
whether
the class of dependant entitled to claim should be extended
to a divorced woman. The learned Judge of Appeal adds that –
[d]ie geleentheid om opnuut oor die dogmatiese kwelvrae te besin, sal
te pas kom wanneer die uitslag van ‘n geding pertinent daarvan
afhang – wat hier nie die geval is nie.
In
the present matter, the issue arises pertinently for decision.
[20] The view that the dependant’s action for loss of
support is in our law a
sui generis
and anomalous remedy has through the years elicited strong
criticism.
16
The late Prof PQR Boberg’s criticism was brief and to the point: he
refers
to “the
jurisprudential monstrosity of an action based upon a wrong to
someone else (if one has a remedy, it can only be because
one’s
own
right has been invaded)”.
17
[21] Both parties rely on the following dictum of
Corbett JA (as he then was) in
Evins v Shield
Insurrance Co Ltd
18
:
An essential and unusual feature of the remedy is that, while the
defendant incurs liability because he has acted wrongfully and
negligently (or with
dolus
) towards the deceased and thereby
caused the death of the deceased, the claimant (the dependant)
derives his right of action not
through the deceased or from his
estate but from the facts that he has been injured by the death of
the deceased and that the defendant
is in law responsible therefore.
Only a dependant to whom the deceased was under a legal duty to
provide maintenance and support
may sue and in such action the
dependant must establish actual patrimonial loss, accrued and
prospective, as a consequence of the
death of the breadwinner. These
principles are trite and require no citation of authority. They
demonstrate the basic differences
between this remedy and that given
to a plaintiff who has suffered bodily injury or sustained damage to
his property as a result
of the wrongful and negligent (or
intentional) conduct of the defendant. In the latter case the action
lies for a wrongful act committed
in respect of the plaintiff’s
person or property and with
culpa
(or
dolus
) vis-à-vis
the plaintiff.
The
judgment can, obviously, not be supportive of two radically opposed
points of view. For a proper understanding thereof it is necessary
to
evaluate the passage cited above, not in isolation, but within the
context of the judgment as a whole.
[22] The question which arose for decision in
Evins
v Shield Insurrance Co Ltd
19
(within the context of a plea of prescription) was whether at common
law a claim for damages by a plaintiff for bodily injury and
the
claim for damages by the same plaintiff for loss of support caused by
the death of the breadwinner (where both the bodily injury
and the
death result from the same accident) are separate causes of action or
simply facets of a single cause of action.
[23] In the judgment, the causes of action underlying
the two claims are analysed.
20
In the case of the claim for bodily injury, the ingredients of the
plaintiff’s cause of action are (a) a wrongful act by the defendant
causing bodily injury, (b) accompanied by fault, in the sense of
culpa
or
dolus
,
on the part of the defendant, and (c)
damnum
,
ie loss to the plaintiff’s patrimony, caused by the bodily injury.
In the case of an action for loss of support, the basic ingredients
of the plaintiff’s cause of action are (a) a wrongful act by the
defendant causing the death of the deceased, (b) concomitant
culpa
(or
dolus
) on the part
of the defendant, (c) a legal right to be supported by the deceased,
vested in the plaintiff prior to the death of the
deceased, and (d)
damnum
, in the sense
of a real deprivation of anticipated support. It is evident that the
facta probanda
in a
bodily injury claim differ substantially from the
facta
probanda
in a claim for loss of support.
21
The learned Judge of Appeal points out
22
that even though the two claims may flow from the same event or
accident, the cause of action in each may arise at a different time.
The following, in the present context, significant conclusion
follows:
23
As I have said, the cause of action in respect of bodily injury will
normally arise at the time of the accident, ie when the bodily
injury
and the consequent
damnum
are inflicted; in the case of the
cause of action for loss of support, this will arise only upon the
death of the deceased, which
may occur some considerable time after
the accident. Until such death there is, of course, no wrongful act
qua
the plaintiff; only a wrongful act
qua
the person
who is later to become the deceased.
[24] In other words, the causing of the death of a
breadwinner through
culpa
or
dolus
is a wrongful
act
vis-à-vis
the
dependant which infringes the dependant’s right of support. In my
view, this is also what is conveyed in the passage cited
in paragraph
[17] above from the judgment in
Evins v Shield
Insurrance Co Ltd
24
where it is stated that –
…
the
dependant derives his right of action … from the facts that he has
been injured by the death of the deceased and that the defendant
is
in law responsible therefor. Only a dependant to whom the deceased
was under a legal duty to provide maintenance and support may
sue …
This is the interpretation put on the passage by a Full
Bench of the Zimbabwe High Court.
25
After citing the passage, the Court (Gubbay ACJ, McNally JA and
Manyarara JA) continues
26
–
The action accrues to the dependant in consequence of his having been
injured by the death of the deceased, and because the defendant
is in
law liable to
him
for
his
patrimonial loss through
being deprived of benefits, whether in the form of maintenance or
services. Put otherwise, the wrongful
killing of the breadwinner is
an infringement of the rights of the dependant.
[25] In
Santam Bpk v Henery
27
,
Amod v Multilateral Motor Vehicle Accidents
Fund (Commission for Gender Equality Intervening)
28
and in
Du Plessis v
Road Accident Fund
29
it was held that a dependant’s claim for
loss of support resulting from the unlawful killing of another
,
being a claim for pure economic loss
,
will
be valid if the deceased had a legally enforceable duty to support
the dependant and if the right of the dependant to such support
was
worthy of protection by way of an action at the suit of the dependant
against the wrongdoer. The existence of a right to support
worthy of
protection by the law must be determined by the criterion of
boni
mores
.
[26] In each of these cases, the Court examined the
question whether the dependant’s right to support was worthy of
protection.
In
Santam Bpk v Henery
30
Nienaber JA held that –
… daar [is] in my gemoed weinig twyfel dat die gemeenskapsbelang
verg dat ‘n geskeide vrou se aanspraak op onderhoud, net soos
dié
van enige ander afhanklike, beskermingswaardig is.
In
Amod v Multilateral Motor
Vehicle Accidents Fund (Commission for Gender Equality Intervening)
31
it was held that the
boni mores
of the community when the instant cause of action arose would have
considered the contractual right of support arising out of a marriage
in terms of Islamic law worthy of protection by the law. In
Du
Plessis v Road Accident Fund
32
it was held that the legal duty of support
owed to the same-sex partner of the deceased in a permanent life
relationship similar in
other respects to marriage, in which the
deceased had undertaken a contractual duty of support to him, was
worthy of protection.
[27] The Court was in these cases not called upon to
embark on a jurisprudential analysis of the nature of the dependant’s
remedy.
What the Court did in each of the cases was to deal with the
dependant’s claim for loss of support as a claim for economic loss
and applied the requisites of Aquilian liability. In each case, the
Court enquired into the legal duty of support owed by the breadwinner
(deceased) to the dependant, and whether the right of the dependant
to such support was worthy of protection by way of an action
at the
suit of the dependant against the wrongdoer. In each case, the Court
held that the right was worthy of protection and that
wrongful
infringement of that right was actionable.
33
Thus it is stated in
Du Plessis v Road
Accident Fund
34
:
In
Henery
and
Amod
it was held that a dependant’s
claim for loss of support as a result of the unlawful killing of
another, being a claim for pure
economic loss, will be valid if the
deceased had a legally enforceable duty to support the dependant and
if the right of the dependant
to such support was worthy of
protection by way of an action at the suit of the dependant against
the wrongdoer.
[28] Wrongful infringement of the dependant’s right to
support is a wrongful act committed against the dependant and not the
breadwinner;
it is an infringement of the rights of the dependant.
Put differently, the legal duty lies in favour of the dependant and
not the
breadwinner.
35
The following conclusion by Davel
36
is, in my view, a correct statement of the law:
Waar ‘n derde dus ‘n broodwinner onregmatiglik dood, begaan hy
daarmee ook ‘n onregmatige daad teenoor die afhanklikes as gevolg
waarvan hulle vermoënsverlies ondervind. Hiermee word voldoen aan al
die vereistes vir deliktuele aanspreeklikheid en die vermoënskade
is
verhaalbaar by die
actio legis Aquiliae
.
The law is stated in similar terms in
LAWSA
:
37
Dependants sue for pure economic loss resulting from the death of the
person who owes them a duty of support. A dependant’s right
is not
derivative. In causing the death of the breadwinner, the defendant
violates a separate and independent right of the dependant,
the right
to maintenance. If the deceased’s death was caused in a
legally-unacceptable manner, for example, without justification,
the
defendant’s conduct was unreasonable in the circumstances. The
violation of the dependant’s right to maintenance occurred
contrary
to accepted norms.
The effect of the independent nature of the action is that any
defence which is personal to the deceased does not operate against
the dependant.
38
[29] The
cause of action pleaded by the plaintiff, a negligent breach of a
legal duty owed by the Police to the plaintiff (as dependant),
is in
accordance with the principles applicable to the dependant’s action
for loss of support. The defendant’s first ground of
exception
cannot, therefore, be sustained.
Wrongfulness
[30] The defendant submits that the allegations of fact
in the plaintiff’s Particulars of Claim, accepting that they are
correct,
are not susceptible in law of sustaining a finding that the
defendant was under a legal duty to avoid loss of support being
caused
to the plaintiff. In other words, the defendant in its
exception pertinently raises the question whether the defendant’s
negligent
omission can be “wrongful” in the delictual sense.
39
The nature of exception proceedings requires that for present
purposes the presence of negligence should be presumed.
40
In other words, when it is said that the defendant owes the plaintiff
no legal duty and that there was thus no wrongfulness, it means
that,
despite the existence of blameworthy conduct, the plaintiff cannot be
liable for damages resulting from the conduct
41
-- the fact that an act is negligent does not make it wrongful.
42
[31] The test for determining wrongfulness was set out
as follows in
Van Eeden v Minister of Safety
and Security (Women’s Legal Centre Trust, as Amicus Curiae)
:
43
Our common law employs the element of wrongfulness (in addition to
the requirements of fault, causation and harm) to determine liability
for delictual damages caused by an omission. The appropriate test for
determining wrongfulness has been settled in a long line of
decisions
of this Court. An omission is wrongful if the defendant is under a
legal duty to act positively to prevent the harm suffered
by the
plaintiff. The test is one of reasonableness. A defendant is under a
legal duty to act positively to prevent harm to the plaintiff
if it
is reasonable to expect of the defendant to have taken positive
measures to prevent the harm. The Court determines whether
it is
reasonable to have expected of the defendant to have done so by
making a value judgment based
44
,
inter alia
, upon its perception of the legal convictions of
the community and on considerations of policy. The question whether a
legal duty
exists in a particular case is thus a conclusion of law
depending on a consideration of all the circumstances of the case and
on
the interplay of the many factors which have to be considered.
…..
45
In
Minister of Safety and
Security v Van Duivenboden
46
it is stressed that when determining whether
the law should recognise the existence of a legal duty in any
particular circumstances
–
… what is called for is not an intuitive reaction to a collection
of arbitrary factors but rather a balancing against one another
of
identifiable norms.
[32] The application of the test of the legal
convictions of the community must necessarily be informed by the
norms and values of
our society as they have been embodied in the
Constitution.
47
In
Minister of Safety and Security v Van
Duivenboden
48
it is further emphasised that the State’s
constitutional duty to act in protection of the Bill of Rights
necessarily implies the
norm of public accountability, and that the
norm of accountability must necessarily assume an important role in
determining whether
a legal duty ought to be recognised in a
particular case. The norm of accountability, however, need not always
translate constitutional
duties into private law duties enforceable
by an action for damages for there will be cases in which other
appropriate remedies are
available for holding the State to account.
49
[33] It
was submitted on behalf of the defendant that in this case there are
other constitutional norms and considerations of public
policy that
outweigh the norm of accountability. The constitutional norms in
question are:
the norm imposed under both the Constitution and the
common law which requires parents and families to care for children;
the constitutional norm in terms of which the State is
required to provide social services to everyone and children in
particular,
and includes providing grants to children in need of
support, whose parents are imprisoned;
[34] In regard to the first of these norms, parental and
family responsibility for children, it was submitted that the common
law
duty of parents and families to provide shelter, clothing and
medical care to children has now been entrenched in section 28(1) of
the Constitution which provides
inter alia
as follows:
Every
child has the right –
…..
to family care or parental care, or to appropriate alternative care
when removed from the family environment
to basic nutrition, shelter, basic health care services and social
services
to be protected from maltreatment, neglect, abuse or degradation.
These
norms in the Constitution and the common law in terms of which
children are entitled to parental and family care, and to the
basic
necessities of life and education, far outweigh, so it was submitted,
the norm of accountability.
[35]
Further in regard to the first norm, the defendant also referred to
section 29(1) of the Constitution which provides:
Everyone
has the right –
to a basic education, including adult basic education;
and
to further education, which the State, through reasonable
measures, must make progressively available and accessible.
In
terms of
section 3(1)
of the
South African Schools Act 84 of 1996
a
parent must cause every child for whom he or she is responsible to
attend school from age seven years to fifteen years, or the
ninth
grade, whichever occurs first. The plaintiff is an apprentice motor
mechanic who has passed the tenth grade at school. It was
submitted
on behalf of the defendant that the plaintiff is seeking damages for
the loss of an education opportunity beyond that which
parents are
statutorily obliged to provide.
[36] The
second constitutional norm which is said to outweigh the norm of
State accountability, is the norm in terms of which the
State is
required to provide social services to everyone and children in
particular. In this regard, reference was made to sections
27(1) and
28(1) of the Constitution, and to the provisions of the Child Care
Act 74 of 1983 and the
Social Assistance Act 13 of 2004
.
[37] The defendant’s contentions regarding the
constitutional norms which are said to outweigh the norm of State
accountability
lose sight of the fact that the support which parents
at common law owe their children is by no means confined to the bare
necessities
of life. The scale upon which parents must provide for
their children is determined by the standard of living of the
parents, as
seen against the background of the family generally, and
their social and economic standing in the community.
50
In appropriate circumstances, a child may be entitled to university
or other post-school education.
51
The alternative sources of support relied on by the defendant do not
find application to the plaintiff’s claims because the kind
of
social support provided by the State (basic food and shelter) would
not have served to ameliorate the plaintiff’s losses. To
the extent
that it may do, this is a matter of evidence and will only serve to
reduce the plaintiff’s losses. Despite the constitutional
norms, a
dependant’s common law claim for support has not been abrogated and
continues to exist.
[38] The legal interest in issue in this case is the
plaintiff’s right to support as against his father (Brooks), who
was obliged
to provide such support. The duty of parents to support
their children was established in Roman and Roman-Dutch law, and has
been
affirmed in many decisions of our courts.
52
The right of a dependant to such support is obviously a right worthy
of protection and wrongful infringement of the right is actionable.
The plaintiff’s counsel contended that the considerations relied
upon by the Supreme Court of Appeal in
Minister
of Safety and Security v Van Duivenboden
53
to hold in favour of the existence of a legal duty in the
circumstances of that case, apply with equal force in this matter:
Where there is a potential threat of the kind that is now in issue
the constitutionally protected rights to human dignity [section
10],
to life [section 11], and to security of the person [section 12] are
all placed in peril and the State, represented by its officials,
has
a constitutional duty to protect them ….. We are not in this case
concerned with the duties of the police generally in the
investigation of crime. I accept (without deciding) that there might
be particular aspects of which the public interest is best served
by
denying an action for negligence, but it does not follow that an
action should be denied where those considerations do not arise.
In
this case, we are concerned only with whether police officers who, in
the exercise of duties on behalf of the State, are in possession
of
information that reflects upon the fitness of a person to possess
firearms are under an actionable duty to members of the public
to
take reasonable steps to act on information in order to avoid harm
occurring. There was no suggestion by the appellant that the
recognition of a legal duty in such circumstances would have the
potential to disrupt the efficient functioning of the police or
would
necessarily require the provision of additional resources, and I see
no reason why it should otherwise impede the efficient
functioning of
the police – on the contrary the evidence in the present case
suggests that it would enhance it. There is no effective
way to hold
the State to account in the present case other than by way of an
action for damages and, in the absence of any norm or
consideration
of public policy that outweighs it, the constitutional norm of
accountability requires that a legal duty be recognised.
The
negligent conduct of police officers in those circumstances is thus
actionable and the State is vicariously liable for the consequences
of any such negligence.
[39] In
Minister of Safety and
Security v Van Duivenboden
, the question was
posed whether police officers, who in the exercise of duties on
behalf of the State are in possession of information
that reflects
upon the fitness of a person to possess firearms, are under an
actionable duty to members of the public to take reasonable
steps to
act on information to avoid harm occurring? Van Duivenboden was a
member of the public, and indeed a member of a class of
people whom
the State would have foreseen as being potential victims if Brooks
were to go on a shooting spree.
54
[40] We are in this case concerned with a different
factual context, and the question is whether in the circumstances of
this case,
the failure on the part of the police to take action gave
rise to an actionable duty to a person in the position of the
plaintiff.
The Court is asked to extend delictual liability by
allowing the claim of a dependant where the breadwinner has by his
own intentional
act (Brooks was convicted of murder) rendered himself
unable to support his dependant. The Court is in effect asked to
extend delictual
liability to a situation where none existed before.
In
Trustees, Two Oceans Aquarium Trust v
Kantey & Templar (Pty) Ltd
55
it is said that the “crucial question in that event is whether
there are any considerations of public or legal policy which require
that extension”.
[41] The dependant’s claim for loss of support is a
claim for pure economic loss and, when dealing with the negligent
causation
of pure economic loss, it is well to remember that whereas
physical injury to the person or property is
prima
facie
unlawful, causing economic loss is
not.
56
One of the factors to be taken into consideration in determining the
legal duty in regard to pure economic loss is whether the defendant
knew or subjectively foresaw that his negligent conduct would cause
damage to the plaintiff.
57
Such foreseeability is often an important, even a decisive factor in
deciding whether wrongfulness has been established, but it is
not in
itself enough.
58
[42] It was clearly foreseeable that Brooks, if left in
possession of his firearms, might embark on a shooting spree. In
Minister of Safety and Security v Van
Duivenboden
59
it was accordingly held that the police were under an actionable duty
to members of the public (including Van Duivenboden) to take
reasonable steps in order to avoid harm occurring. The question in
this case is whether that duty is to be extended to a duty to
ensure
that Brooks did not act in a manner in which he rendered himself
unable to fulfil his obligations towards his own dependants.
The
imposition of such a supervisory duty
60
would amount to the imposition on the police of legal duties which go
beyond their primary, constitutional functions to prevent,
combat and
investigate crime, to maintain public order, to protect and secure
the inhabitants of the country and their property and
to uphold and
enforce the law.
61
[43] Counsel for the defendant submitted that allowing
the claim in the present case would, for example, open the door to
claims for
loss of support by the dependants of breadwinners who by
their own criminal acts render themselves unable to support their
dependants.
62
Brooks by his own criminal act rendered himself unable to support the
plaintiff. One may pose the question whether the dependants
of Brooks
would have a claim for loss of support if Brooks had not committed a
crime, but used the firearms the police had negligently
left in his
possession to commit suicide?
[44] Finally, the Court is asked to extend the
dependant’s claim for loss of support to a situation where the
breadwinner has neither
been killed nor injured in a wrongful and
culpable manner. It is settled law that the dependants of a person
killed in a wrongful
and culpable manner may claim damages for loss
of support.
63
Whether the dependants of a person injured in a wrongful and
culpable manner may claim damages for loss of support is
controversial
and by no means established.
64
The plaintiff asks the Court to extend the dependant’s claim for
loss of support beyond that which is as yet unsettled and
controversial
in our law.
[45] The
State should not, in my view, as a matter of public and legal policy,
be burdened by claims for loss of support by the dependants
of
persons who by their own acts have rendered themselves unable to
support their dependants.
[46] For
the above reasons I have reached the conclusion that there was, in
the circumstances of this case, no legal duty on the members
of the
police as contended for by the plaintiff.
Causation
[47] One of the grounds of exception the defendant
raises in his notice of exception is that “the omission on the part
of the defendant’s
servants was not the cause of the plaintiff’s
loss”. In
Telematrix (Pty) Ltd t/a Matrix
Vehicle Tracking v Advertising Standards Authority SA
65
Harms JA, in response to a contention that it
is inappropriate to decide the issue of wrongfulness on exception
because the issue
is fact-bound, remarked:
Some public policy considerations can be decided without a detailed
factual matrix, which by contrast is essential for deciding
negligence
and causation.
After
the hearing of oral argument, I requested that counsel make written
submissions on the question whether issues of causation
can be dealt
with on exception.
[48] In
their response, plaintiff’s counsel submitted that the issues of
causation in this matter should not be decided on exception.
They
rely on three contentions:
That the issue of factual causation has been resolved
in
Minister of Safety and Security v Van
Duivenboden
66
and
cannot be the subject of an exception in this case.
That a plaintiff is not required to establish the
causal link with certainty, but only to establish that the wrongful
conduct was
probably a cause of the loss, which calls for a sensible
retrospective analysis of what would probably have occurred, based
on
the evidence and what can be expected to occur in the ordinary
course of human affairs.
67
That the issue of legal causation involves
considerations of policy and policy conclusions are best drawn from
proven facts.
68
[49] The
defendant’s counsel submit –
That if the plaintiff’s amended particulars of claim
cannot sustain a finding that the omission on the part of the police
was
a cause of the plaintiff’s loss of support from his father,
the plaintiff would not be able at the trial to discharge the onus
of proving causation.
That the exception based on causation constitutes a
self-contained, separate defence, and that the issue of causation in
relation
to the plaintiff’s claim for loss of support from his
father can be determined on exception.
That the legal and policy considerations that militate
against imposing a legal duty on the police in the present case,
apply equally
in relation to the issue of legal causation.
That the issue of legal causation involves
considerations of legal and public policy, and an inquiry –
In which legal policy and accepted value judgments must be the final
arbiter of what balance to strike between the claim to full
reparation for the loss suffered by an innocent victim of another’s
culpable conduct and the excessive burden that would be imposed
on
human activity if a wrongdoer were held to answer for all the
consequences of his default.
69
[50] The
answer to these submissions is threefold:
The issue of factual causation in respect of the
plaintiff’s claim was not resolved in
Minister
of Safety and Security v Van Duivenboden.
70
In that case, the Court dealt with the issue of factual causation in
relation to Van Duivenboden’s claim. Despite the fact that
the
factual issues overlap to a large extent, there are factual issues
which pertain to the plaintiff’s claim only which were
not before
the Court in that case.
In regard to factual causation there are issues of fact
which need to be clarified by evidence in order to establish a
“detailed
factual matrix” for deciding causation.
It may well be that the same legal and policy
considerations that militate against imposing a legal duty on the
police would apply
equally in relation to the issue of legal
causation, but within the context of a detailed factual matrix,
other policy considerations
may also become relevant. Policy
conclusions are best drawn from proven facts.
[51] In
First National Bank of
South Africa Ltd v Duvenhage
71
it was held that it is useful at times to consider whether the loss
for which damages are claimed is causally connected to the allegedly
unlawful conduct before addressing the more abstract normative
questions of wrongfulness and negligence. The present may be a case
(I express no opinion thereon) in which the claim may fail for want
of a causal connection between the unlawful conduct and the loss
and
that it may be worth giving thought to causation at the outset, but
that can only be determined on the basis of proven facts.
[52] I
am accordingly of the view that the issue of causation raised in the
defendant’s exception should not be decided on exception.
Conclusion
[53] From
the foregoing it follows that the exception to the plaintiff’s
claim for loss of support and for loss of an education
opportunity
arising from the incarceration of Brooks should be upheld. Though the
defendant succeeded in only one of the three grounds
of exception
raised, the defendant was nevertheless the ultimate successful party
and is entitled to his costs. There cannot be any
doubt that the
nature of the matter justified the employment of two counsel.
The
following order is made:
The exception to the plaintiff’s claim for loss of
support and for loss of an education opportunity arising from the
incarceration
of his father, Neil Brooks, is upheld with costs,
including the costs occasioned by the employment of two counsel.
The plaintiff is given leave, if so advised, to file
amended particulars of claim within one month.
HJ ERASMUS, J
1
2002
(6) SA 431
(SCA).
2
This
is subject to the exception that the correctness of the facts stated
in the pleading must not be clearly untrue or so improbable
that
they cannot be accepted (
Van
Zyl NO v Bolton
1994 (4) SA 648
(C) at 651E—F;
Voget
v Kleynhans
2003
(2) SA 148
(C) at 151G—H;
TWK
Agriculture Ltd v NCT Co-operative Ltd
2006 (6) SA 20
(N) at 23B—C).
3
2002
(6) SA 431
(SCA).
4
1908
TS 575
at 584.
5
At
584—585.
6
Hulley
v Cox
1923 AD 234
;
Milward
v Glaser
1949 (4) SA 931
(A) in which the action is described as “peculiar”
(at 941);
Suid-Afrikaanse
Nasionale Trust en Assuransie Maatskappy Bpk v Fondo
1960 (2) SA (A) at 471H—472A;
Legal
Insurance Co Ltd v Botes
1963 (1) SA 608
(A) at 614B—G..
7
1960
(2) SA 467
(A) at 471H—472A.
8
1963
(1) SA 608
(A) at 614.
9
1911
AD 657.
10
1922
AD 53.
The judgment in this case should, however, be read in the
light of the analysis thereof by Greenberg J (as he then was) in
De
Vaal NO v Messing
1938 TPD 34.
Also see
Plotkin
v Western Assurance Co Ltd
1955 (2) SA 385
(W) and
Erdmann
v Santam Insurance Co Ltd
1985 (3) SA 402
(C).
11
[1999] ZASCA 5
;
1999
(3) SA 421
(SCA).
12
1999
(4) SA 1319
(SCA).
13
2004
(1) SA 359
(SCA).
14
[1999] ZASCA 5
;
1999
(3) SA 421
(SCA).
15
At
430A—B; and see the remarks of Cloete JA in
Du
Plessis v Road Accident Fund
2004 (1) SA 359
(SCA) at 369D.
16
Full
reference to the literature in this regard is given by Davel
Skadevergoeding
aan Afhanklikes by die Dood van ‘n Broodwinner
(1987) at 49 fn 19. See also Neethling Potgieter Visser
Law
of Delict
(5
th
ed) 256—257.
17
The Law of
Delict
vol I 728.
18
1980 (2) SA 814
(A) at 837H—838B.
19
Supra.
20
At
838H—839E.
21
At
839C—D: “Proof of bodily injury is basic to the one; proof of
the death of the breadwinner is basic to the other. Proof of
a right
to support and the real expectation that, but for the breadwinner’s
death, such support would have been forthcoming is
basic to the one,
irrelevant to the other”.
22
At
839D.
23
At
839E.
24
Supra.
25
Zimnat
Insurance Co Ltd v Chawanda
1991 (2) SA 825
(ZSC).
26
At
830E.
27
[1999] ZASCA 5
;
1999
(3) SA 421
(SCA) at 430C.
28
1999
(4) SA 1319
(SCA) at 1326A—D.
29
2004
(1) SA 359
(SCA) at 370A.
30
[1999] ZASCA 5
;
1999
(3) SA 421
(SCA) at 430G.
31
1999
(4) SA 1319
(SCA) at 1329H.
32
2004
(1) SA 359
(SCA) at 376C.
33
In
this regard, the following statement by Law J in
Ismail
v General Accident Insurance Co of SA Ltd
1989 (2) SA 473
(D&CLD) at 479C—D is apposite:
It is a fundamental principle of our law that where
the law imposes an obligation upon one person in respect of another
it also
confers a right upon that other. Equally fundamental is the
principle that where a right exists so too does a corresponding
remedy.
(
Ubi jus ibi remedium
). Accordingly, if the law
imposes an obligation upon a mother to support her children it also
confers upon them the right to receive
such maintenance and the
remedy with which to enforce that right.
34
2004
(1) SA 359
(SCA) at 370A.
35
This
view finds support in section 2(1B) of the Apportionment of Damages
Act 34 of 1956 which provides that if the negligent act
of the
deceased breadwinner and the third party contributed to the
breadwinner’s death and consequently to the dependant’s
loss of
support, they are regarded as joint wrongdoers, and therefore both
have committed delicts against the dependant. Seen in
this light,
the dependant’s claim is based on a delict committed against the
dependant (see Neethling Potgieter Visser
Law
of Delict
(5
th
ed) 257 fn 32).
36
Sk
adevergoeding
aan Afhanklikes by die Dood van ‘n Broodwinner
(1987) at 51. In an article written thirteen years later, Prof Davel
poses the question, “Hoekom die afhanklikes se aksie dus
steeds as
a
actio
sui generis
bekend staan, bly onverklaarbaar”. She adds that one would have
thought that “ons begrip van hierdie remedie oor die jare so
toegeneem het dat die afhanklikes se aksie die
sui
generis
stadium ontgroei het” (“Die ontwikkleing van die Aksie van
Afhanklikes”
2000
Acta
Juridica
158
at 159—160).
37
(2
nd
ed) Vol 8 Part
1 Par 75.
38
See
Jameson’s
Minors v Central South African Railways
1908 TS 575.
39
The
present is a matter in which, in my view, the issue of wrongfulness
can be decided on exception (see
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
2006
(1) SA 461
(SCA) at 465F;
Minister
of Law and Order v Kadir
[1994] ZASCA 138
;
1995 (1) SA 303
(A) at 318H—J;
Indac
Electronics (Pty) Ltd v Volkskas Bank Ltd
[1991] ZASCA 190
;
1992 (1) SA 783
(A) at 801A—C;
Trustees, Two Oceans Aquarium Trust v Kantey & Templar (Pty) Ltd
2006 (3) SA 138
(SCA) at 143I.
40
Trustees, Two Oceans Aquarium
Trust v Kantey & Templar (Pty) Ltd
2006 (3) SA 138
(SCA) at 143I—J.
41
Minister of Finance and Others
v Gore NO
2007 (1) SA 111
(SCA) at 138I—139A;
Trustees,
Two Oceans Aquarium Trust v Kantey & Templar (Pty) Ltd
2006 (3) SA 138
(SCA) at 143I.
42
Telematrix (Pty) Ltd t/a
Matrix Vehicle Tracking v Advertising Standards Authority SA
2006 (1) SA 461
(SCA) at 468B.
43
2003
(1) SA 389
(SCA) at 395H—396A; the passage is cited with approval
in
Minister
of Safety and Security v Hamilton
2004 (2) SA 216
(SCA) at 229E—H.
44
In
an oft-cited passage from Fleming
The Law of Torts
(4
th
ed) at 136 ) it is succinctly stated that “the recognition of a
duty of care is the outcome of a value judgment”. The passage
is
cited in full in,
inter
alia
,
Minister
of Safety and Security v Hamilton
2004 (2) SA 218
(SCA) at 230D.
45
The
Court refers to
Carmichele
v Minister of Safety and Security and Another
[2000] ZASCA 149
;
2001 (1) SA 489
(SCA) at 494B—D;
Cape
Town Municipality v Bakkerud
2000 (3) SA 1049
(SCA) at 1056E—1057G;
Olitzki
Property Holdings v State Tender Board and Another
2001 (3) SA 1247
(SCA) at 1256F—1257B and 1263C—F;
BOE
Bank Lid v Ries
2002 (2) SA 29
(SCA) at 46H—47A;
Minister of Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) at 444B—E.
46
2002
(6) SA 431
(SCA) at 446F.
47
Van
Eeden v Minister of Safety and Security (Women’s Legal Centre
Trust, as Amicus Curiae)
2003 (1( SA 389
(SCA) at 396H;
Minister
of Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) at 444E—G.
48
2002
(6) SA 431
(SCA) at 446F—G.
49
In
Minister of
Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) Marais JA in a minority judgment held that in
the particular circumstances of that case the police were under a
legal duty
to act even on application of the traditional test for
delictual wrongfulness and that it was not necessary to have regard
to the
Constitution.
50
Boberg’s
Law of Persons and Family
(2
nd
ed by Belinda van Heerden
et
alii
)
243—244.
51
Mentz v Simpson
1990 (4) SA 455
(A); and see the further authorities cited in
Boberg’s Law of
Persons and Family
(2
nd
ed by Belinda van Heerden
et
alii
)
244 fn 60.
52
See
Boberg’s
Law of Persons and the Family
(2
nd
ed by Belinda van Heerden
et
alii
)
240. In
In
re Estate Visser
1948 (3) SA 1129
(C) at 1133 it is stated: “Die aanspreeklikheid
van ‘n vader, gedurende sy leeftyd, om sy kinders te onderhou is
natuurlik
buite twyfel”.
53
2002
(6) SA 431
(SCA) at 447F—448D.
54
See
Minister
of Safety and Security v Carmichele
2004 (3) SA 305
(SCA) at 324E—H.
55
2006
(3) SA 138
(SCA) at 145C.
56
BOE
Bank Ltd v Ries
2002 (2) SA 39
(SCA) at 46F—G;
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
2006 (1) SA 461
(SCA) at 468C.
57
Neethling
Potgieter Visser
Law
of Delict
(5
th
ed) 270 fn 162).
58
BOE Bank Ltd v Ries
2002 (2) SA 39
(SCA) at 49C.
59
Minister
of Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) at 448B.
60
See
Du Bois “Getting Wrongfulness Right: a Ciceronian Attempt”
2000
Acta
Juridica
1
at 42—43.
61
Section
205(3) of the Constitution.
62
Examples
referred to by counsel are claims by the dependants of the rapist,
housebreaker and thief in
Minister
of Safety and Security and Another v Carmichele
2004 (3) 305 (SCA) at 312C—313J; of the known dangerous criminal,
armed robber and serial rapist in
Van
Eeden v Minister of Safety and Security
2003 (1) SA 389
(SCA) at 394E; of the person suffering from paranoid
personality disorder and paranoid psychosis in
Minister of Safety and Security v Hamilton
2004 (2) SA 216
(SCA) at 226G —228C, and of the murderer in
Minister
of Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) at 437B—G.
63
In
Evins
v Shield Insurance Co Ltd
1980 (2) SA 814
(A) at 839C—D it is stated that “proof of the
death of the breadwinner is basic” to the dependant’s claim for
loss of support.
64
Van
der Merwe and Olivier
Die
Onregmatige Daad in die Suid-Afrikaanse Reg
(6
th
ed) 336-339; Neethling Potgieter Visser
Law
of Delict
(5
th
ed) 262. See also the authorities cited in footnote 10 above.
65
2006
(1) SA 461
(SCA) at 465G.
66
2002
(6) SA 423
(SCA) at 448H—451A.
67
Minister
of Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) at 449E—F;
Minister
of Safety and Security v Hamilton
2004 (2) SA 216
(SCA) at 240G.
68
In
this regard reliance is placed on what is said in LAWSA 2
nd
ed Vol 8 Part 1 par 132 in regard to decision of the issue of
wrongfulness on exception, the submission being made that the
principles
set out there apply equally to causation.
69
Words
of Fleming
The
Law of Torts
7
th
ed at 173 cited by Corbett CJ in
International
Shipping Co (Pty) Ltd v Bentley
1990 (1) SA 680
(A) at 701B.
70
2002
(6) SA 423
(SCA) at 448H—451A.
71
2006
(5) SA 319
(SCA) at 321E—F and 326E..