Nelson v Minister of Safety and Security and Another (1326/04) [2006] ZANCHC 88 (5 May 2006)

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[2006] ZANCHC 88
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Nelson v Minister of Safety and Security and Another (1326/04) [2006] ZANCHC 88 (5 May 2006)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape Division)
Case
no: 1326/04
Date
heard: 2006\03\02
Date
delivered: 2006-05-05
In
the matter of
:
SUZETTE
IRENE ELMARIE NELSON
PLAINTIFF
and
THE MINISTER OF SAFETY AND
SECURITY
FIRST
DEFENDANT
THE MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
SECOND
DEFENDANT
Coram:
MAJIEDT J
JUDGMENT
MAJIEDT J:
The
plaintiff sued the defendants for damages on the basis of the
defendants’ alleged negligence arising out of the defendants’

failure to take steps to have the plaintiff’s ex-husband, Dirk
Nelson, declared unfit to possess a firearm. It is alleged that
such failure is causally connected to the injuries sustained by the
plaintiff when she was shot by the said Nelson with his licensed
firearm.
The
matter proceeded on the issue of liability only, such an order
having been made in terms of Rule 33(4) at the request of the
parties. No evidence was led and the parties agreed to a written set
of facts which was placed before me, together with documents
annexed
thereto. For the sake of brevity the agreed facts can be
summarised as follows:
2.1 The police’s standing orders of
1979 relating to the administration of the Arms and Ammunition Act,
75 of 1969 (“the Act”)
were applicable to the conduct of SAPS
members during the period 1999 to 2002, i.e. the period relevant to
the occurrences in the
present matter.
2.2 During
January 1999 plaintiff’s ex-husband (“Nelson”) had applied for
and was granted a firearm licence in respect of a
9mm Vektor pistol.
2.3 Plaintiff and Nelson were married
to each other on 17 November 1999.
2.4 On 11 December 2000, plaintiff
laid criminal charges against Nelson at the Sutherland police station
under CAS 77/12/2000 (“the
first criminal charge”). The charge
on the docket indicated an alleged contravention of section 39
(1)(m) of the Act, viz. handling
of a firearm while under the
influence of intoxicating liquor. In her affidavit, plaintiff
averred in substantiation of the charge
that Nelson had punched her
in the face. She also averred therein that Nelson had, while
intoxicated, taken out his firearm and
had mentioned to her that he
would never allow her to be with anyone else but him and that he
would rather kill both himself and
the plaintiff.
2.5 The
policeman who attended to the plaintiff’s complaint, Constable
Hoffman, noted in his pocketbook that the plaintiff had visible
injuries to her face, eye and chest. The relevant entry reads:
“
Duidelike
beserings aan haar gesig, oog en bo
rs
was sigbaar a.g.v. handelinge”.
2.6 On 11 December
2000, Constable Hoffman arrested Nelson on the aforementioned
complaint and also seized his firearm, handing it
in to the SAP13
store at the Sutherland police station.
2.7 The
plaintiff received treatment at the Sutherland hospital on the same
day (i.e. 11/12/2000) for an injury to her left eye and
scratches to
her chest. The nurse who treated her, namely sister Nel, noted that
the plaintiff presented as anxious, tense and fearful
of Nelson.
After treatment, the plaintiff was taken home by the police.
2.8 On
the same day, the plaintiff applied to the magistrate at Sutherland
for a protection order in terms of the
Domestic Violence Act, 116 of
1998
, under case number 8/2000. Plaintiff made reference in this
application to previous physical violence and verbal abuse by Nelson.
She also made mention of the following:
(a) That Nelson had threatened her
with a firearm and had threatened to kill her;
(b) That
she had been assaulted physically with resultant visible injuries;
(c) That the application should be
treated as urgent, given the fact of Nelson’s threats to kill her;
(d)
A
specific request was made by her to the Magistrate that the police
should seize Nelson’s firearm and ammunition;
(e) A
repeat averment was made that Nelson had stated that she was his
alone and that he would rather kill both of them than to see
her with
someone else.
2.9 An interim
protection order was granted against Nelson under case no 8/2000, as
aforementioned, on 13 December 2000 (“the first
protection order”).
It was ordered
inter
alia,
that
a member of the SAPS at Sutherland seize Nelson’s 9mm pistol and
ammunition.
2.10 On
10 January 2001 plaintiff made application to the magistrate that the
aforementioned first protection order be set aside,
since Nelson had
requested her forgiveness and had shown remorse for his conduct.
Plaintiff stated further that she had been equally
to blame for the
incident, that Nelson had since acquired a job and that he was the
family’s sole breadwinner. The first protection
order was
consequently set aside on 14 February 2001.
2.11 On
13 May 2001, plaintiff laid another criminal charge, CAS 52/5/2001
against Nelson (“the second criminal charge”). The
charge was
one of assault with intent to do grievous bodily harm and she alleged
that Nelson had
inter
alia
punched her in the face. She attended the local hospital on that day
where she received three stitches for a 3cm laceration to her
left
eyebrow and two stitches for a 1cm laceration to her lower lip. Her
left eye was blue and swollen. She was treated by Dr.
Malan.
2.12 On
20 June 2001 plaintiff testified in court on the first criminal
charge (CAS 77/12/2000). She confirmed that she had laid
the charge,
but was unable to say why. She declared that it was untrue that
Nelson had threatened her with a firearm. According
to her she was
drunk on the night in question and she had laid a false charge
against Nelson out of anger and to take revenge against
him.
Following upon this evidence, Nelson was discharged at the end of the
State’s case on the same day. On that day the second
criminal
charge (CAS 52/5/2001) was withdrawn by the prosecutor at plaintiff’s
request. No withdrawal statement was, however,
filed in the docket –
there is only a note in the investigation diary:
“
TT
(teruggetrek) deur SA op versoek van klaagster”.
2.13 On 21 August
2001, plaintiff applied under case number 17/2001 to the magistrate
at Sutherland for another protection order
in terms of the
Domestic
Violence Act. It
was recorded in this application that plaintiff’s
daughter was emotionally affected by the family violence and that
plaintiff
and her daughter frequently had to flee from Nelson. The
fact that plaintiff had laid two assault charges against Nelson was
also
recorded and mention was also made that Nelson had regularly
assaulted plaintiff even before their marriage.
2.14 On
22 August 2001, an interim protection order was issued under case
number 17/2001 against Nelson in favour of plaintiff (“the
second
protection order”). The return date was 12 September 2001. This
second protection order was served on Nelson by Constable
Hoffman
on 17 September 2001.
2.15 On 5 September 2001, the station
commander of the SAPS at Sutherland forwarded the docket in the first
criminal charge(CAS 77/12/2000)
to the area commissioner of the SAPS
at Springbok for purposes of an enquiry in terms of section 11 of
the Act. In his covering
letter to the docket the station commander
wrote:
“
Aansoek:
artikel 11 ondersoek: Sutherland MAS 77/12/2000-hantering van ‘n
vuurwapen terwyl onder die invloed van drank (Wet 75/69
artikel
39(1)(m) “
1
Aangeheg vind dossier vir beslissing ten opsigte van artikel 11
ondersoek en die aanstelling van die betrokke offisier.”
2.16 On 2 October
2001 the area commissioner SAPS Springbok, returned the
aforementioned docket with an accompanying letter to the
station
commander, SAPS Sutherland, stating therein that it was not necessary
that an enquiry in terms of section 11 of the Act
be held. The
letter had the same heading as set forth in paragraph 2.15 above and
stated that
:
“
1.
Hiermee
dossier terug aan u kantoor.
2 Dit
is egter nie nodig om voort te gaan met ‘n Artikel 11 ondersoek
nie, aangesien die hof alreeds ‘n beslissing omtrent die
voorval
gemaak het.
3. Sien
Artikel 12- onbevoegdheid by skuldigbevinding om wapen te besit.”
2.17 On 10 October
2001 the second protection order was made final (the return date
having been extended twice before then). In terms
of that order,
Nelson was
inter
alia
prohibited from:
- threatening or assaulting
plaintiff;
- entering
their shared residence;
- entering the plaintiff’s then
temporary residence.
2.18 No enquiry in terms of section
11 of the Act as to the fitness of Nelson to be in possession of a
firearm was ever held. A
copy of the record of the proceedings
under the
Domestic Violence Act was
never forwarded by the clerk of
the magistrate’s court, Sutherland, on the instructions of the
magistrate, to the National commissioner
of the SAPS for
consideration in terms of section 11 of the Act.
2.19 On
26 October 2001 the SAPS at Sutherland handed back Nelson’s firearm
to him.
2.20 On
9 January 2002 plaintiff obtained a final divorce order against
Nelson.
2.21 On
20 January 2002 Nelson entered the former shared residence, armed
with his 9 mm pistol which had been returned to him by the
police.
He unlawfully fired shots at three persons on the premises. One shot
hit one Johan Skiffers, wounding him. Two shots hit
one Wimka Louw
in the head, fatally wounding him. Three shots hit the plaintiff,
two of which entered her head and the third of
which entered her
abdomen, lodging close to her spine.
2.22 Plaintiff
was transported by ambulance to the hospital with the aforementioned
gunshot wounds to her head and abdomen. She was
in a critical
condition upon admission. She was treated there before being
transferred to the Eben Dönges Hospital at Worcester.
2.23 On
the same day, 20 January 2002, Nelson shot and killed himself with
his firearm.
3
. To
complete the background information, it is necessary to add the
following to the abovementioned agreed set of facts:
3.1 One Sergeant du Toit had
accompanied Constable Hoffman in attending to the plaintiff’s
complaint on 10 December 2000, alluded
to above at par. 2.5. In
his affidavit Du Toit confirmed in broad detail the facts set forth
by Hoffman regarding plaintiff’s
complaint and her allegations
against Nelson.
3.2 According
to the exhibit register, 58/2000, Nelson’s 9 mm pistol
together with a 9 mm magazine and one 9 mm round
were
handed in at the Sutherland police station on 12/12/2000 under
CAS 77/12/2000 (i.e. the first criminal charge).
3.3 Certain salient
features of the plaintiff’s affidavit on the first criminal charge
require emphasis. She stated,
inter
alia
,
as follows:
“
Dirk
het toe by my kom sit waarop hy met my kom gesels het en aan my
genoem het dat
hy
‘n mislukking in die lewe is en dat hy nie meer wil lewe nie.
Dirk
het toe
sy
vuurwapen geneem
en aan my genoem dat hy vir my vir niemand anders gun nie en dat
hy
my maar liewer saam met hom sal doodmaak
.
Ek het dit egter reggekry om die wapen van hom af te kry waarop ek
die magasyn uitgehaal het en gesien dat daar net een rondte
in dit
was. Ek het toe die wapen met die magasyn in die kluis toegesluit
…..Dit is nie die eerste keer dat Dirk my aanrand nie.
Vorige kere
het hy my al geklap en my geskel maar
dit
was nie so erg soos hierdie keer nie
.”
(emphasis
supplied)
3.4 The following entry dated
1/6/2001, appears in the investigation diary relating to the first
criminal charge (the entry was presumably
made by Const. Hoffman
subsequent to Nelson’s acquittal on this charge):
“
OB,
besk vrygespreek; klaagster getuig haar A1
verkl is leuens, besk was nie dronk en het nie die vuurwapen hanteer
deur haar te dreig nie”.
Immediately thereafter, the following
inscription appears:
“
Nagesien:
i) Versend
dossier na
AK
vir Artikel 11 o/soek”.
The
docket was thus sent to the area commissioner at Springbok for a
section 11 enquiry,
subsequent
to the plaintiff’s recantation under oath of her sworn statement
and the consequent acquittal of Nelson.
3.5 It is of some
importance to record that, in applying for the setting aside of the
first protection order, the plaintiff did not
retract any of the
allegations which she had made against Nelson (see par. 2.8 and 2.10
supra
).
3.6 With regard to the confirmation of
the second (interim) protection order on 10 October 2001, the
presiding Magistrate recorded
the proceedings by hand as follows:
“
Beide
partye teenwoordig. Kl deel mee sy is van plan om te skei, ten spyte
van resp se po
gings
om te versoen; hy het geen beswaar dat bevel finaal gemaak word nie.
Beskermingsbevel
per Vorm 6 en lasbrief per Vorm 8.
Gevolge
van nie-nakoming van bevel aan resp verduidelik; dui aan hy
verstaan.”
4.
In
Minister
of Safety and Security v van Duivenboden
2002
(6) SA 431
(SCA),
it was held that :
“
A
negligent omission is unlawful only if it occurs in circumstances
that the law regards as sufficient to give
rise
to a legal duty to avoid negligently causing harm…. Where the law
recognises the existence of a legal duty it does not follow
that an
omission will necessarily attract liability - it will attract
liability only if the omission was also culpable, namely whether
a
reasonable person in the position of the defendant would not only
have foreseen the harm but would also have acted to avert it.”
(at
441F - 442A).
The Court held further that a
negligent omission is
“
regarded
as unlawful when the circumstances of the case are of such a nature
that the omission not only evokes moral indignation
but the legal
convictions of the community require that it should be regarded as
unlawful”
(at
442C).
At 444F - G the
Court held that
“
the
legal convictions of the community must necessarily now be informed
by the norms and values of our society as they have been embodied
in
the 1996 Constitution.”
5.
The
abovementioned passages from the
Van
Duivenboden case
are
particularly apposite to the present case, since:
(a) the plaintiff’s
case is based on an alleged negligent unlawful omission on the part
of the defendants’ servants acting in
the course and scope of their
employment with the respective defendants; and
(b) the
facts in that case is not dissimilar to those in the present case,
particularly with regard to the first defendant’s position.
6.
The
defendants’ argument can be summarised as follows:-
6.1 On their behalf
Mr Albertus has submitted that with regard to first defendant’s
legal duty, the pertinent question to be answered
is whether, on the
date that Nelson’s firearm had been handed back to him, namely 26
October 2001, the first defendants’ servants
had in their
possession information that reflected adversely upon Nelson’s
fitness to possess a firearm.
6.2 He
submitted further that on the agreed facts, there was no such adverse
information in the police’s possession. In this regard
Mr Albertus
emphasized the fact of the plaintiff’s perjury in the criminal
trial on the first criminal charge. He described her
recantation
under oath of her sworn witness statement as being indicative not
only of her untruthfulness, but also of her vindictiveness,
i.e. that
she was prepared to abuse legal process to achieve her own goals.
6.3 Consequently,
so it is submitted, her sworn statement in the docket which was
forwarded to the area commissioner, was lacking
in both admissibility
and probative value. There was therefore no statement under oath as
required in section 11 of the Act before
the area commissioner upon
which he could reasonably have been expected to exercise his
discretion in favour of holding a section
11 enquiry.
6.4 Mr
Albertus also submitted that the information contained in the two
protection order applications and in the second criminal
charge were
either unreliable (as hearsay or as a consequence of the plaintiff’s
perjury at the trial on the first criminal charge),
or did not
reflect adversely at all on Nelson’s fitness to possess a firearm.
In the circumstances, so it is submitted, the police
cannot be
faulted at all for not forwarding any other documentation over and
above the docket in the first criminal charge to the
area
commissioner, since no reasonable person in the position of the
police would have had reason to believe that the information
in their
possession reflected adversely upon Nelson’s fitness to possess a
firearm.
6.5 Regarding
the area commissioner’s position, Mr Albertus submitted that, on
the information contained in the docket forwarded
to him, the area
commissioner could not have been impelled to entertain a belief as
contemplated in section 11, which would have
required him to hold a
section 11 enquiry. It has been submitted further that, even if
additional documentation had to be forwarded
to the area commissioner
by the police at Sutherland, it did not follow that the area
commissioner in the exercise of his discretion
would have held an
enquiry.
This was so, given the facts of the
matter (see paragraph 6.4 above). It was also submitted that even if
an section 11 enquiry had
been held, it is unlikely that the area
commissioner would have declared Nelson unfit to possess a firearm,
particularly if Nelson
had been given an opportunity to state his
case before the area commissioner.
6.6 With regard to
the second defendant’s position, Mr Albertus submitted that the
order for seizure of Nelson’s firearm, as ordered
in the first
protection order of 13 December 2000, had fallen away once the
protection order had been set aside on 14 February 2001
at the behest
of the plaintiff. He also submitted that the provisions in
section
9(2)
of the
Domestic Violence Act did
not apply to Nelson’s firearm
in the present case, since that firearm had been seized under the
provisions contained in the
Criminal Procedure Act, 51 of 1977
.
6.7 As
a second arrow to his bow regarding the second defendant’s
position, Mr Albertus has submitted that the second defendant
can
only be held liable for acts performed by a magistrate in his or her
official capacity as such in instances where the magistrate
had acted
mala
fide
;
in this regard he referred to the well-known judgment of
May
v Udwin
1981
(1) SA 1(A).
6.8 The
defendants have pleaded in the alternative that the plaintiff has
been contributory negligent. In this regard Mr Albertus
has
submitted that, as a consequence of the plaintiff’s recantation
under oath of her sworn witness statement at the criminal trial,
a
section 11
enquiry had not been held. If she had not recanted,
such an enquiry would in all probability have been held and the
firearm would
not have been returned to Nelson in case of a
conviction. The withdrawal of the second criminal charge and the
setting aside of
the first protection order, both at plaintiff’s
instance and request, exacerbate matters further, so he submitted.
6.9 Finally,
Mr Albertus sought to distinguish some of the decided cases from the
present one on the facts. It is indeed to the case
law which I now
turn.
7.
A
convenient point of departure in examining the relevant case law is
to firstly take cognizance of the applicable legislation.
7.1 Section
11(1) of the Act reads as follows:
“
11 Declaration
of person by commissioner to be unfit to possess arms
If
the commissioner is of the opinion that on the ground of information
contained in a statement made under oath, other than such
a statement
made by the person against whom action in terms of this section is
contemplated, there is reason to believe that any
person is a person-
(a) ….
(b) who
has threatened or expressed the intention to kill or injure himself
or any other person by means of an arm; or
(c) whose
possession of an arm is not in the interest of that person or any
other person as a result of his mental condition, his
inclination to
violence, whether an arm was used in the violence or not, or his
dependence on intoxicating liquor or a drug which
has a narcotic
effect; or
(d) who,
while in lawful possession of an arm, failed to take reasonable steps
for the safekeeping of such arm.
(e) …
he
may, by notice in writing delivered or tendered to such person by a
policeman, call upon such person to appear before the commissioner
at
such time and place as may be specified in the notice, in order to
advance reasons why such person shall not be declared unfit
to
possess any arm on any ground aforesaid so specified.”
7.2
Sections 9(1)
and (2) of the
Domestic Violence Act, 116 of 1998
, provide that:
“
(1) The
court must order a memb
er
of the South African Police Service to seize any arm or dangerous
weapon in the possession or under the control of a respondent,
if the
court is satisfied on the evidence placed before it, including any
affidavits supporting an application referred to in
section 4(1)
,
that-
(a) the
respondent has threatened or expressed the intention to kill or
injure himself or herself, or any person in a domestic relationship,
whether or not by means of such arm or dangerous weapon; or
(b) possession
of such arm or dangerous weapon is not in the best interests of the
respondent or any other person in a domestic relationship,
as a
result of the respondent’s-
(i) state
of mind or mental condition;
(ii) inclination
to violence; or
(iii) use
of or dependence on intoxicating liquor or drugs.
(2) Any
arm seized in terms of subsection (1) must be handed over to the
holder of an office in the South African Police Service
as
contemplated in
section 1
1(2) (b) of the Arms and Ammunition Act,
1969 (Act 75 of 1969), and the court must direct the clerk of the
court to refer a copy of
the record of the evidence concerned to the
National commissioner of the South African Police Service for
consideration in terms
of section 11 of the Arms and Ammunition Act,
1969.
”
8.
1 In
a case such as this the first fundamental principle which requires
consideration is the constitutional duty of the organs of
State.
In
Carmichele
v Minister of Safety and Security
[2001] ZACC 22
;
2001
(4) SA 938
(CC) at 957 E-F the Court, per Ackermann et Goldstone JJ
held that:
“
It
follows that there is a duty imposed on the State and all of its
organs not to perform any act that infringes rights (i.e. the
rights contained in the Bill of Rights). In some circumstances there
would also be a positive component which obliges the State
and its
organs to provide appropriate protection to everyone through laws and
structures designed to afford such protection.”
8.2 With particular
reference to the State’s constitutional duty to afford protection
to women, the Court held at 962 F:
“
Following
this route it might be easier to cast the net of unlawfulness wider
because constitutional obligations are now placed on
the State to
respect, protect, promote and fulfil the rights in the Bill of Rights
and, in particular, the right of women to have
their safety and
security protected.
”
At
964 E- 965 A, it was stated as follows:
“
South
Africa also has a duty under international law to prohibit all
gender-based discrimination that has the effect or purpose of
impairing the enjoyment by women of fundamental rights and freedoms
and to take reasonable and appropriate measures to prevent the
violation of those rights. The police is one of the primary agencies
of the State responsible for the protection of the public in
general
and women and children in particular against the invasion of their
fundamental rights by perpetrators of violent crime.”
9.
1 In
Van
Eeden v Minister of Safety and Security 2003(1) SA 389 (SCA)
Vivier
ADP stated as follows at 397 C-F:
“
The
fundamental values enshrined in the Constitution include human
dignity, the achievement of equality and the advancement of human
rights and freedoms, non-racialism and non-sexism (s 1(a) and (b) of
the Constitution). In terms of s 12(1)(c) everyone has the right
to
freedom and security of the person, which includes the right to be
free from all forms of violence from either public or private
sources.
For
present purposes it is not necessary to decide whether the right to
be free from violence constitutes a separate entitlement or
whether
it is merely an explicit element of the right to freedom and security
of the person. Freedom from violence is recognised
as fundamental to
the equal enjoyment of human rights and fundamental freedoms (S v
Baloyi (Minister of Justice and Another Intervening)
[1999] ZACC 19
;
2000 (2) SA 425
(CC) para [13]). Section 12(1)(c) requires the State to protect
individuals, both by refraining from such invasions itself and by
taking active steps to prevent violation of the right. The subsection
places a positive duty on the State to protect everyone from
violent
crime.”
At 398 C-F, the learned Judge stated:
“
Under
the
South African Police Service Act 68 of 1995
the functions of the
police include the maintenance of law and order and the prevention of
crime. The police service is thus one
of the primary agencies of the
State responsible for the discharge of its constitutional duty to
protect the public in general and
women in particular against the
invasion of their fundamental rights by perpetrators of violent crime
(Minister of Law and Order
v Kadir
[1994] ZASCA 138
;
1995 (1) SA 303
(A), at 321F and
the Constitutional Court's judgment in Carmichele (para [62])).
[17]
In Van Duivenboden the majority of this Court emphasised (para [20])
that the very existence of the State's constitutional duty
to act in
protection of the rights in the Bill of Rights necessarily implies
the norm of public accountability, and pointed out that
s 41(1) of
the Constitution expressly provides that all spheres of government
and all organs of State within such sphere must provide
government
which is not only effective, transparent and coherent, but also
government which is accountable. The Court held (para
[21]) that this
norm must necessarily assume an important role in determining whether
a legal duty ought to be recognised in any
particular case.”
At 399 D-E,Vivier ADP stated that:
“
An
important consideration in favour of recognising delictual liability
for damages on the part of the State in circumstances such
as the
present is that there is no other practical and effective remedy
available to the victim of violent crime. Conventional remedies
such
as review and mandamus or interdict do not afford the victim of crime
any relief at all. The only effective remedy is a private
law
delictual action for damages.
9.2 The
Van
Eeden
-case,
supra,
concerned
the police’s liability for damages arising out of the plaintiff
being raped by a known dangerous criminal and serial rapist
who had
escaped from police custody by fleeing through an unlocked security
gate. In discussing the policy considerations which,
as was the case
in England at that time, may limit the police’s delictual liability
on the grounds of public interest, the learned
Judge stated at 399
– 400 B:
“
The
considerations upon which the English Courts have based their
approach are in any event not applicable to a case such as the
present.
This case does not concern the manner in which the police
performed their functions relating to the detection of crime and the
apprehension
of criminals. These are matters in which public policy
may well require that police should have a wide discretion. This case
is concerned
solely with the control that
the police are required to exercise over a known dangerous criminal
in police custody, in other words with the operational implementation
of their own policies and not with the policy itself. The recognition
of a legal duty in such circumstances will not disrupt the
efficient
functioning of the police, nor will it necessarily require additional
resources. There is accordingly no reason to fear
that it might
inhibit the proper performance by the police of their primary
functions or lead to defensive policing.”
As
is the case in
Van
Eeden
,
I am of the view that this case pertinently concerns the operational
implementation of the police’s own standing policy with regard
to
the administration of the Act.
10.
I
now turn to a consideration of the case law relating in particular to
the police’s legal duty regarding the fitness of persons
to possess
a firearm.
10.1 in
Minister
of Safety & Security v Van Duivenboden
,
supra
,
the respondent had sued the appellant for damages for injuries
sustained when he was shot by one Brooks. The respondent averred
in
his summons that the police acted negligently in failing to take
steps to deprive Brooks of his licensed firearms, despite there
being
grounds to do so and that their negligence was the sole cause of him
being shot by Brooks. On appeal the Court had to consider
the legal
duties imposed on the police by virtue of the provisions of section
11 of the Act, bearing in mind the duty of the State
to protect the
fundamental rights as provided for in sec. 7(2) of the
Constitution, Act 108 of 1996. This consideration entailed
primarily
the police’s failure to act on information which pointed to Brooks’
unfitness to possess a firearm as set forth in
section 11 of the Act.
10.2 Mr.
Viljoen has submitted on behalf of the plaintiff that the following
passages from the
Van
Duivenboden
-case
(per Nugent JA) are particularly apposite to the facts and
circumstances of this case:
10.2.1 At 439 C:
“
Long
before the respondent was shot various police officers were in
possession of information that reflected upon Brooks's fitness
to be
in possession of firearms. In some cases that information emanated
from Dawn but in other cases members of the police had direct
knowledge of the facts as a result of two incidents.”
10.2.2 At 441 B-C:
“
Simply
from the events that occurred on 27 September 1994 it was known to a
number of police officers, more than a year before the
respondent was
shot, that while he was in a drunken state Brooks had threatened to
shoot himself and any person who attempted to
intervene, including
the police. That by itself warranted Brooks being declared unfit to
possess firearms for a period of not less
than two years. All that
was required for the requisite procedure to be commenced was for any
one of the police officers to reduce
that information to writing
under oath and to forward the statement to the person responsible for
holding such enquiries.”
10.2.3 At 449 G-I:
“
There
can be little doubt that, if the information that was known to the
various police officers had been attested to under oath and
furnished
to the relevant person, an enquiry would have followed within a
reasonable time and, in my view, it must be assumed that
the police
officer who conducted the enquiry would have considered the matter
rationally in the performance of the duties imposed
by the statute.
49 Not only is there no reason to assume that a senior police officer
would not have done so but that would also
have accorded with what
was required by law. 50 Brooks' conduct on the night in question fell
squarely within the terms of s 11(1)(b)
and there can be little doubt
that he would have been declared unfit to possess firearms for there
was simply no proper basis upon
which to avoid doing so. In terms of
s 11(4) that declaration would have operated for not less than two
years, but the enquiring
officer would have had a discretion in terms
of s 11(5A) to suspend the operation of the declaration for a period
not exceeding two
years.”
10.3 In
Minister
of Safety and Security v De Lima 2005(5) SA 575 (SCA)
,
the respondent had been shot and seriously wounded by one Dos Santos
who had a valid firearm licence. Pursuant to this shooting
incident
the respondent sued the appellant for damages. On appeal the Court
had to consider whether the Trial Court had been correct
in upholding
the respondent’s contentions that the police had been negligent in
recommending that a firearm licence be issued and
in issuing such
licence to Dos Santos, which negligence caused the respondent’s
injuries. Central to the determination on appeal
as to whether the
police had in fact been negligent, was the consideration of Dos
Santos’ reference in his application for a firearm
licence that a
criminal charge against him had been withdrawn. In emphasizing the
need for the police to have ascertained how the
criminal charge
against Dos Santos came to be withdrawn, Cloete JA stated 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.
[5]
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.”
At 581 B-C the
learned Judge stated that:
“
In
addition the fact that the charge was withdrawn should not have ended
the enquiry. Any policeman should know that a charge can
be withdrawn
in circumstances which do not indicate that the person charged is
innocent (for example, pending further investigation
or where the
complainant has died or become untraceable).
“
11.
In
my view the most important aspects which require consideration herein
in determining whether the police’s failure to conduct
a section
11 enquiry into Nelson’s fitness to possess a firearm constitutes a
negligent omission, are the following:
a) The plaintiff’s perjury at the
trial on the first criminal charge and the resultant discharge of
Nelson at the end of the State’s
case.
b) The
withdrawal of the second criminal charge by the prosecutor at the
request of the Plaintiff.
c) The
setting aside of the first protection order on the application of the
plaintiff.
I now deal with
these three aspects
seriatim.
12.
1 I
have already alluded to the plaintiff’s evidence at the trial in
par. 2.12 above. Plaintiff’s recantation under oath
must
have come as a considerable surprise to the prosecutor and, more
importantly, to sergeant Du Toit and Constable Hoffman, who
had
attended to the complaint on the first criminal charge. This
recantation should undoubtedly have raised the suspicions of, at
the
very least, Du Toit and Hoffman. They had personally seen the
plaintiff some 9 hours or so after she had allegedly been assaulted
by Nelson who had also allegedly handled his firearm while under the
influence of liquor. Hoffman had in fact noted in his pocketbook
that he was able to observe visible injuries on the plaintiff’s
chest, eye and face. In all likelihood, Du Toit must have observed
these injuries, particularly those on plaintiff’s face and eye, as
well although he has not recorded such observation anywhere.

Moreover, Hoffman had transported the plaintiff to and from the
hospital where she was treated for her injuries. Sister Nel’s
clinical notes indicated that plaintiff had
“hou
op linkeroog, skraapwonde linkerbors”.
In all the circumstances I am of the view that the plaintiff’s
perjury at the trial, as an isolated fact, did not warrant a
conclusion
that there were no grounds to conduct a section 11
enquiry. I fail to understand why Hoffman did not attest to an
affidavit setting
out fully his knowledge of the matter (i.e.
regarding the first criminal charge) and his own personal
observations (regarding plaintiff’s
visible injuries), which
affidavit should have been included in the docket which was sent to
the area commissioner.
In any event, as I shall presently
show, the docket as it was, contained sufficient information to
warrant the holding of an enquiry
into Nelson’s fitness to possess
a firearm.
12.2 The mere
withdrawal of the second criminal charge without anything further, is
in my view not decisive at all. It should be
borne in mind that no
withdrawal statement had been obtained, from the plaintiff (
qua
complainant)
as is the practice. There was consequently no information available
as to the
reason/s
for
plaintiff’s request to have the second criminal charge against
Nelson withdrawn. In the absence of such reason/s there was,
unlike
in the first criminal charge, no recorded recantation of plaintiff’s
allegations against Nelson regarding his assault on
her. The
dictum
in the
De
Lima
-case
at 581 B-C (see par. 10.3
supra
)
regarding the withdrawal of a charge, is particularly apposite in
this case. There was a crying need for an investigation into
the
circumstances surrounding such withdrawal. A perusal of the medical
information in the matter would have revealed that the plaintiff
had
required three stitches to her left eyebrow and two stitches to the
lower lip, as a consequence of the injuries sustained in
the alleged
assault on her by Nelson on this second criminal charge.
This, coupled with
Nelson’s history of violent conduct and his alleged unlawful
handling of his firearm (i.e. the first criminal
charge) should have
alerted the authorities to Nelson’s possible unfitness to possess a
firearm.
12.3 The first protection order had
been set aside at the plaintiff’s request for the reasons advanced
by her which I would describe
as compassionate grounds. She clearly
felt empathy for Nelson by reason of the fact that he had apologised
to her, he had obtained
employment and because he was the sole
breadwinner of the household. He had also apparently accepted her
child as his own.
The various
averments regarding Nelson’s assaults on her and his general
violent conduct towards her were never withdrawn by the
plaintiff,
not even when she applied for the setting aside of the protection
order
.
I
intend dealing with the second respondent’s position later, but the
police should in my view have taken into account the plaintiff’s
allegations in the first protection order application,
notwithstanding it having been set aside. The facts emanating from
that application
should have been included in one detailed affidavit,
perhaps by Const. Hoffman to collate all the relevant facts and
information
to be forwarded to the area commissioner.
13.
As
I have already indicated, the docket in the first criminal charge had
been forwarded by the station commander, SAPS Sutherland,
under a
covering letter to the area commissioner, SAPS Springbok, for a
decision on a section 11 enquiry. The covering letter is
dated
5 September 2001. By that date the following had
already
occurred:
a) The first criminal charge had been
laid (on 11/12/2000).
b) The plaintiff had been medically
examined (on 10/12/2000) and visible injuries to her face, eye and
chest had been noted by both
Sister Nel and Const. Hoffman.
c) Nelson’s licensed firearm had
been seized (on 11/11/2000).
d) The
first protection order had been issued (on 13/10/2000).
e) The
second criminal charge had been laid (13/05/2001).
f) Plaintiff had been medically
examined again (on 13/05/2001) pursuant to the second criminal charge
and she had required stitches
to close the wounds sustained in the
alleged assault.
f) Nelson had been discharged on the
first criminal charge (on 20/06/2001) and the second criminal charge
had been withdrawn on the
same date.
g) A (second) interim protection order
had been issued against Nelson on plaintiff’s application (on
22/08/2001).
The station
commander’s failure to include all the other relevant facts
emanating from the abovementioned occurrences collated in
an
affidavit by, say, Hoffman, constitutes a negligent omission on the
police’s part, in my view (compare the
dictum
of
Nugent JA in the
Van
Duivenboden
case at 441 D-E). This negligent omission, coupled with the
glaring negligent conduct of the area commissioner, which I will
discuss next, is directly causally linked to plaintiff being shot by
Nelson as I shall show in due course.
14.
1 I
have little doubt that the additional information, in particular the
contents of the docket in the second criminal charge which
included a
medical form J88 which vividly demonstrated that the complainant had
received stitches to her wounds immediately after
the alleged
assault, was of vital importance. Moreover, this second criminal
charge was still pending at the time of the forwarding
of the docket
to the area commissioner and there was a (second) interim protection
order in place against Nelson. In both of these,
serious allegations
of assault had been made against Nelson, which reflected adversely
upon his fitness to possess a firearm.
14.2 Counsel
for the plaintiff has during argument, quite correctly, laid much
emphasis on Hoffman’s role in this matter. Hoffman
not only had
personal knowledge of the plaintiff’s injuries with regard to the
first criminal charge which he had noted in his
pocketbook, but he
also:
a) acted as investigating officer in
both criminal cases;
b) had been aware
that the plaintiff had applied on two occasions to the magistrate for
protection orders against Nelson – it is
clear from the papers
before me that Hoffman was the police officer who had served
both
these interim protection orders on Nelson;
c) had
been aware that,
subsequent
to Nelson’s discharge on the first criminal charge and the
withdrawal of the second criminal charge (both of which occurred on
20/06/2001) the plaintiff had applied for the second protection
order, because he (Hoffman) had served same on Nelson.
14.3 The collation
of the above vitally important information would undoubtedly have
gone a long way in persuading the area commissioner
that a section 11
enquiry into Nelson’s fitness to possess a firearm is warranted.
15
. In
examining the area commissioner’s role, it is firstly abundantly
clear that he was not apprised of all the relevant facts pertaining
to the matter, as set forth hereinabove. Nonetheless, it is clear
that the area commissioner has, on the (limited) information made
available to him
vis-à-vis
the docket in the first criminal charge, completely misconceived the
provisions of section 11 and the duties imposed on him by that
section . In so doing, he has acted negligently in failing to
institute a section 11 enquiry into Nelson’s fitness to possess
a
firearm.
16
. I
have quoted the area commissioner’s response regarding the possible
holding of an enquiry in full at par. 2.16 above.
There are two
fundamental misdirections contained therein:
16.1 Firstly,
the area commissioner completely misconceived the duties imposed upon
him by section 11 in declaring that “it was
not necessary to
conduct a section 11 enquiry, since the court had already made a
decision about the incident” (paraphrased).
The court had in fact
merely discharged Nelson at the end of the State’s case due to a
lack of
prima
facie
evidence against him. The court had not been seized with an enquiry
into Nelson’s fitness to possess a firearm and consequently
could
not and did not make a decision thereon. This amounts to an
astounding misconception on the part of the area commissioner
regarding the role and duties of a magistrate at a criminal trial as
opposed to that of the commissioner at a section 11 enquiry.
16.2 In the second
place, the area commissioner’s reference to the provisions
contained in section 12 of the Act is completely misplaced.
It is
quite sufficient to merely refer to the heading of section 12 in this
regard: “
Unfitness,
upon
conviction
,
to possess arm”
(own emphasis).
Nelson had not been convicted, on the
contrary, he had been discharged. Section12 finds no application at
all in the instant case.
17.
The
glaring and material misdirections on the part of the area
commissioner clearly constitute negligence in my view. If he had
properly understood the duties imposed upon him by section 11, he
would in all likelihood have instituted an enquiry, notwithstanding
the plaintiff’s recantation under oath at the criminal trial. At
such a section 11 enquiry, a much fuller and more troubling picture
of Nelson’s conduct and his unfitness to possess a firearm would
have emerged. It can be assumed that, in holding such an enquiry,
the area commissioner “
would
have considered the matter rationally in the performance of the
duties imposed by the statute
”
(per Nugent JA in
Van
Duivenboden
at 449 G) and as is required by law (
ibid
).
The area commissioner would be expected to exercise the discretion
vested in him rationally and judicially.
18.
I
find it convenient to deal now with an aspect raised by Mr Albertus
during argument. He submitted that it did not follow that
Nelson
would have been declared unfit to possess a firearm after a section
11 enquiry, particularly if Nelson had been granted an
opportunity to
state his case. I cannot see how Nelson could convincingly have
persuaded the commissioner that the allegations against
him were
untrue, given all the objective evidence available, more particularly
the medical evidence. To borrow from Nugent JA in
Van
Duivenboden
at 450 B-C: firearm licences are not issued so that the holders
thereof acquire licence to shoot innocent people, nor do firearms
belong in the hands of drunks.
Nelson’s
conduct, as was the case with that of Brooks in
Van
Duivenboden
,
establishes a clear pattern of violent assaults, drunkenness, misuse
of his firearm while intoxicated and a predisposition to violent
threats against his spouse, the plaintiff. It is difficult to
conceive, in such circumstances, how the commissioner could not have
exercised his discretion against Nelson remaining in lawful
possession of his firearm.
19.
1 During
argument much has been made of plaintiff’s perjury at the criminal
trial. I do not share the view that her perjury is
indicative of her
general untruthfulness and vindictiveness. Her recantation should
have aroused the suspisions of, at the very
least, Hoffman. As I
have already shown, there were in any event other facts and
circumstances beyond her perjury which warranted
a section 11
enquiry.
19.2 It
has also been submitted that her averments against Nelson amounted to
hearsay, were therefore inadmissible and could not be
taken into
account by the area commissioner. A similar argument was advanced on
appeal in
Van
Duivenboden
.
I respectfully align myself with the following
dictum
of Nugent JA on that point:
“
The
provisions of the
section
do not preclude hearsay but if that was indeed Hefer's concern she
could surely have obtained confirmatory evidence from
other police
officers with more direct knowledge of the facts.”
In
the present case, Hoffman was ideally placed to verify the averments
from plaintiff.
20.
Mr.
Albertus has sought to distinguish the cases relied upon by Counsel
for the plaintiff, from the present matter. Such distinction
was
sought to be drawn primarily on the basis that the information
imparted to the authorities in the other cases were objectively
unassailable and unequivocal, unlike the information in the present
case. I have already dealt at length with the various criticisms
levelled at the plaintiff as being an unreliable perjurer, liar and
vengeful person.
To summarise –
in my view such criticism is overstated and unreasonably harsh of the
plaintiff. Moreover, and in any event, there
had been other,
objective and reliable information which reflected adversely upon
Nelson’s fitness to possess a firearm, available
to the police at
that time.
21. Very
little argument has been advanced on the causation issue. I am,
however, in no doubt whatsoever, that the negligence of
the first
defendants’ servants (both at Sutherland and the area commissioner
at Springbok) is causally directly linked to the plaintiff
being shot
by Nelson. Had all relevant information been collated and forwarded
to the area commissioner and/or had the latter properly
and correctly
construed the provisions of section  11, he would have conducted
an enquiry into Nelson’s fitness to possess
a firearm and the
conclusion would, on a preponderance of probabilities, have been that
his firearm licence should be withdrawn.
22. In
the premises and for the reasons set out above, the first defendant
must be held vicariously liable for the injuries sustained
by the
plaintiff after having been shot by Nelson.
23. The
second defendant’s position is considerably different to that of
the first defendant regarding the issue of liability.
Two aspects
require consideration herein:
a) The legal duty
imposed on a magistrate under
section 9
of the
Domestic Violence
Act; and
b) whether the second defendant can be
held vicariously liable for the conduct of the magistrate/s who had
presided in the domestic
violence proceedings.
These two aspects will be discussed
separately hereinafter.
24. In the first protection order
application, the plaintiff had levelled complaints against Nelson
that he:
a) had punched her in the face while
she was lying on the ground; and
b) had,
whilst holding his firearm, made mention to her that he would rather
kill both of them than to see her with someone else;
and
c) had
been under the influence of liquor during the events described in (a)
and (b) above.
25. In applying for the setting aside
of the first protection order, none of the abovementioned allegations
against Nelson had been
withdrawn by the plaintiff. Her application
for rescission was clearly actuated by compassion and empathy for
Nelson who, in her
view, had apparently turned over a new leaf.
26. Part
of the first protection order was to the effect that Nelson’s
firearm be seized – at this stage the firearm had already,
however,
been in the police’s possession, it having been seized on the first
criminal charge.
27. There was in my view sufficient
information placed before the magistrate to trigger the provisions
contained in
section 9(1)
and
9
(2) of the
Domestic Violence Act.
There
was indeed an order issued under
section 9(1)
,
viz
seizure of Nelson’s firearm, but no action was taken under
section
9(2)
,
viz
referral of the copy of the record of the evidence to the national
commissioner of the SAPS for consideration of a
section 11
enquiry.
A
period of approximately one month had elapsed between the granting of
the first protection order (on 11/12/2000) and the application
for
the setting aside thereof (on 10/01/2001). There is no indication
whatsoever that any steps were taken under
section 9(2)
to refer the
record to the commissioner. The setting aside order was made only on
14/02/2001 – the first protection order had
accordingly been
operative for a period of just over 2 months. No steps whatsoever
were taken during this time to give effect to
the provisions of
section 9(2)
which are couched in peremptory terms (“the magistrate
must
direct the clerk of the court ….”).
The
application itself had been brought on an urgent basis as the
plaintiff had feared for her life and this was mentioned in her
application. Moreover, she had specifically requested seizure of
Nelson’s firearm.
I am of the view
that this failure on the part of the Magistrate to direct the clerk
of the court to refer the record of the evidence
to the commissioner
for a consideration in terms of section 11 of the Act, constitutes
negligence as set out in
Kruger
v Coetzee 1966(2) SA 428 (A) at 430 E-F.
28. Mr Albertus has submitted that
plaintiff has failed to prove that the magistrate ought reasonably to
have foreseen that his/her
failure to issue such a directive for
referral of the evidence, would give rise to Nelson shooting the
plaintiff.
I do not agree.
The plaintiff was clearly fearful of Nelson and
such
fear related to his lawful possession of a firearm, hence her request
that his firearm be seized
.
One fails to understand how an order under section 9(1) could have
been made and yet no order was made under section 9(2) in these
circumstances. The magistrate must obviously have been satisfied
that the jurisdictional facts under section 9(1) had been proved,
hence the issuing of an order for seizure of the firearm. The
provisions in section 9(2) follow logically on those contained in
section 9(1) – once the jurisdictional facts exist and once an
order of seizure of the firearm is consequently made, the firearm
must be handed over to the SAPS and a directive for the referral of
the evidence to the commissioner must be made (under section
9(2)).
One of the
jurisdictional facts enunciated in section 9(1) is that the Court
must be satisfied on the evidence before it that:
“the
respondent has threatened or expressed the intention to kill or
injure himself or herself or any person in a domestic relationship
…..”
The magistrate
must therefore have been aware that,
sans
an order in terms of section 9(2) and
sans
a section 11 enquiry, Nelson would remain in lawful possession of his
firearm as no enquiry and withdrawal of his firearm licence
would
follow.
The consequences to the plaintiff of
such a state of affairs ought indeed to have been reasonably
foreseeable by the magistrate,
given the plaintiff’s stated fear of
Nelson and her request to have his firearm removed.
29.
1 At
448 F-G of
Van
Duivenboden
,
reference was made to the danger of placing undue demands upon public
functionaries and authorities in determining foreseeability
of harm.
It was pointed out that an enquiry has to be made as to whether a
person is required to act at all in order to avoid reasonably
foreseeable harm and, if so, what that person is required to do. The
answer to this enquiry would depend upon what can reasonably
be
expected in the circumstances of a particular case – such an
enquiry would ensure that undue demands are not placed upon public
authorities and functionaries. In the course of this enquiry,
cognisance must be taken concerning the public authority or
functionary’s
resources and the manner in which they have
prioritised matters, in determining whether they had acted reasonably
(
ibid
).
29.2 in this matter the magistrate,
having taken the view that the provisions of section 9(1) had become
operative (and consequently
the provisions in section 9(2) as well),
merely had to issue a directive to the clerk of the court to refer
the record of the evidence
to the commissioner. The task imposed on
the clerk of the court is a simple administrative exercise â€“
similar to the referral
of records to a High Court in criminal
reviews under
section 303
of the
Criminal Procedure Act, 51 of 1977
.
This is a routine administrative task undertaken regularly at all
magistrate courts, even one as small as Sutherland, on an almost
daily basis in criminal cases which are subject to automatic review.
Consequently, it cannot in my view be
said that the peremptory requirements of
section 9(2)
impose an undue
and onerous demand upon the magistrate and the clerk of the court –
the former merely has to issue a directive
and the latter simply has
to refer a copy of the record of the evidence to the commissioner.
How onerous or burdensome can that
be?
29.3 In
the premises therefore, I hold the view that it was reasonably
foreseeable to the magistrate that harm may ensue to the plaintiff
if
a
section 11
enquiry into Nelson’s fitness to possess a firearm was
not held. A reasonable magistrate would have caused the necessary
steps
to be taken to have the matter referred to the commissioner for
his consideration of a
section 11
enquiry and the magistrate’s
failure to do so constitutes negligence in my view.
29.4 The
second (interim) protection order was made final on October 10, 2001,
i.e. some three months prior to the shooting incident
in which Nelson
killed one person and wounded two others, including the plaintiff.
My findings regarding the magistrate’s negligence
in respect of the
first protection order apply
mutatis
mutandis
to
the second protection order; in fact, the negligence in the latter
instance may be of an even higher degree, given the fact that
the
second protection order was never set aside, but had in fact been
made final. The magistrate’s recordal of the proceedings
where the
second protection order had been confirmed, shows that:
a) Nelson was present thereat; and
b) he
had no objection to the interim order being made final; and
c) the consequences of non-compliance
with the final order had been explained to him and he acknowledged
that he understood same.
In these
circumstances a referral of the matter to the commissioner in terms
of
section 9(2)
was most certainly required. The application for
this second protection order had contained similar allegations of
repeated assaults
by Nelson on the plaintiff.
30.
A
more perplexing question is the second aspect, namely the second
defendant’s vicarious liability for the magistrates’ negligence
aforestated. Mr. Albertus has submitted that the magistrates had
acted
bona
fide
and
within the course and scope of their duties as such in both
instances. He has submitted that in these circumstances it is
doubtful
whether the second defendant can be held vicariously liable
and has referred to
Van
Rooyen & others v The State & others 2002(5) SA 246
(CC)
.
31.
in
May
v Udwin
,
supra
,
the Appellate Division had held that a judicial officer is protected
by qualified privilege in defamation matters. Such qualified
privilege protection can only be forfeited where it is proved on a
balance of probabilities that the judicial officer, in publishing
defamatory statements in the course of executing his judicial
functions, had acted
mala
fide
and
out of malice. In the course of discussing the qualified privilege
afforded a magistrate, Joubert JA held that:
“
Qualified
privilege
is founded on public policy … This is especially so with the
qualified privilege of a judicial officer: public interest
in the due
administration of justice requires that a judicial officer in the
exercise of his judicial functions, should be able to
speak his mind
freely without fear of incurring liability for damages for
defamation”
(at
19 H).
32.
In
Van
Rooyen & others v The State & others
,
supra
,
the Constitutional Court affirmed the institutional independence of
Magistrates Courts as laid down in section 165(2) of the
Constitution.
The Court (per Chaskalson CJ) held that:
“
Implicit
in this recognition of the fact that the courts and their structure,
with the hierarchical differences between higher courts
and lower
courts which then existed, are considered by the Constitution to be
independent”
(at
269 F – 270 A).
Various
aspects of judicial independence were considered by the Court having
regard to magistrates’ security of tenure, financial
security, and
the like. The
Van
Rooyen
case
does not in my view, offer a direct answer to the question whether
the second defendant should be held vicariously liable in
circumstances where a magistrate, performing judicial functions in a
bona
fide
manner, had acted negligently. The case is, however, of considerable
assistance in another respect as I shall show in due course.
33.
Vicarious
liability is generally speaking, premised on social policy with
regard to what is fair and reasonable. It is tantamount
to an
expression of society’s legal convictions that victims of delictual
conduct should be able to recover damages from someone
who has the
ability to compensate the victim of such delictual conduct.
See:
Mhlongo
and another NO v Minister of Police 1978(2) SA 551 (A) at
567 H:
“…
in
the ultimate analysis such
vicarious
responsibility was based upon considerations of social policy”
(per
Corbett JA).
34.
1 In
order to assess whether vicarious liability finds application, a
twofold enquiry is required: firstly to ascertain whether or
not the
particular delictual conduct had occurred while the person in
question was acting on behalf of another, or independently.
In
vicarious liability matters, the first issue is therefore whether
there is some or other connection between the parties (
in
casu
the magistrate/s and second defendant).
34.2 There is “
no
uniform or universal principle that governs each and every case
involving vicarious liability…..
”
(per Smallberger JA in
Van
der Berg v Coopers and Lybrand Trust (Pty) Ltd and others 2001(2)
SA 242 (SCA) at 258 D-E
.)
The classic connecting factor is an employment relationship. An
important factor which is taken into consideration in determining
whether such an employment relationship exists, is the aspect of
control. That is not, however a conclusive factor
per
se
(
ibid
).
The current approach is to adopt a broader multi-faceted test which
considers all relevant factors, including questions of policy
and
fairness, to determine vicarious liability;
See:
Midway
Two Engineering and Construction Services v Transnet Bpk 1998(3)
SA 17 (HHA) at 23 H-J.
In
the present case magistrates are given a considerable amount of
discretion in the execution of their duties – in such instances
the
element of control provides little assistance as a criterion for the
determination of vicarious liability. The position of the
magistrate/s
in
casu
is not dissimilar to, for example that of policemen (compare:
Minister
van Polisie v Gamble 1979(4) SA 759 (A))
and trustees (compare
Van
der Berg v Coopers and Lybrand Trust
,
supra
).
See also, generally:
Absa Bank Ltd v Bond Equipment
(Pretoria) (Pty) Ltd 2001(1) SA 372 (SCA) at 378 B-G;
K v Minister of Safety and Security
2005(3) SA 179 (SCA) at 183 C.
34.3 In applying these legal
principles to the present matter, the following aspects are germane:
a) Magistrates are
independent, as an arm of government, separate from the executive and
legislature (see the
Van
Rooyen
case,
supra
);
b) Magistrates
are are placed under the political office of the second defendant in
the sense that the second defendant is the political
authority
responsible for magistrates;
c) The test is:
“…
wie
as ‘n kwessie van billikheid en beleid die nouste met die
gevaarskeppende bedrywigheid …. gemoeid is”
(per
Nienaber JA in the
Midway
Engineering
case,
supra
at 23 I);
d) in this case, issues of fairness
and, more importantly, policy considerations would find dominant
application in the enquiry.
35.
The
most important factor in weighing up policy considerations
and fairness in the present matter is the question of the
limits of
delictual liability, given the unique circumstances of this case
regarding the negligent omissions of the magistrate/s.
The primary
fear is that imposing delictual liability in these circumstances upon
a magistrate might have a chilling effect. In
this regard, such
fears:
“…
are
sufficiently met by the proportionality exercise which must be
carried out and also by the
requirements
of foreseeability and proximity. This exercise in appropriate cases
will establish limits to the delictual liability
of public officials”
per
Ackerman
et
Goldstone JJ in the
Carmichele
case,
supra
at 960 A-B.
In
assessing the legal duty owed by a prosecutor either to the public in
general or to a particular member thereof, the Court in
Carmichele
cautioned
that account should be taken of the pressures under which prosecutors
work, particularly in the magistrates’ courts (at
968 B). The
same surely holds true for magistrates.
36.
Ultimately,
a decision one way or the other on this vexed question of the
vicarious liability for the negligent omissions of the
magistrate/s,
would involve developing the common law, which is an inherent power
afforded this Court, taking into account the interests
of justice
(section 173 of the Constitution). Where the common law is out of
step with the spirit, purport and objects of the Bill
of Rights, the
courts have a constitutional obligation to develop the common law by
correcting same. This is so, since section 39(2)
of the Constitution
holds that:
“…
when
developing the common law … every court … must promote the
spirit, purport and objects of the Bill of Rights”.
37.
The
fundamental right of the plaintiff here is the right to security of
the person, more particularly the right “
to
be free from all forms of violence from either public or private
sources
”
(section 12(1)(c) of the Constitution). The magistracy, as part of
the judiciary, forms an independent organ of the State, which
is
charged in section 7(2) of the Constitution with the obligation “
to
respect, protect, promote and fulfill the rights in the Bill of
Rights.
.
38.
1 in
Hannah
v Government of the Republic of Namibia 2000(4) SA 940
(Nm
LC), the applicant, a Judge of the Namibian High Court, had launched
an urgent application against the government for an order
restraining
the latter from unilaterally altering his conditions of employment as
a Judge. The application was brought in the Namibian
Labour Court.
The Court was called upon to decide a point
in
limine
,
namely that it lacked jurisdiction to hear the case since a Judge is
not an employee of the State.
38.2 In
upholding the point
in
limine
,
Ngoepe AJ first examined the position of a Judge in Namibia in some
detail, having regard to:
a) A Judge’s appointment for life by
the President on recommendation of the Judicial Service Commission;
b) the
fact that a Judge may only be removed on the ground of mental
incapacity or for gross misconduct under a stringent procedure;
c) the fact that a Judge’s salary is
governed by legislation and that it may not be reduced;
d) the
independence of the judiciary being guaranteed by the Namibian
Constitution.
38.3 Ngoepe AJ then
examined the true nature of a Judge’s duties, namely the exercise
of judicial functions, which were to be exercised
in terms of the
Namibian Constitution in accordance with the Judge’s oath of
office. No supervision or control
vis-a-vis
the
State exists, on the contrary, it is expressly prohibited by the
Constitution (on the doctrine of the separation of powers).
With
reference to the Indian case of
Union
of India v Pratibha Bonnerjea [1996] AIR SC 690
,
Ngoepe AJ held that:
“
I
find
the
reasoning in the above judgment very persuasive. It is noteworthy
that the constitutional position of a Judge in India is to
a large
extent the same as that of a Judge in this country: at least as
regards appointment, security of tenure and judicial independence.

It is interesting that, if a representative of the government were to
defy a Judge’s order, the Judge would have the power to
commit such
a person to prison for disobeying the order – ‘master’ being
sent to prison by its own ‘servant’ for having
disobeyed the
‘servant’? Yet another consideration is the fact that the
supposed employer does not have the power to dismiss
the applicant at
will; were the dismissal not to be in accordance with the
Constitution, it would simply be
ultra
vires
and
of no force and effect. That is the extent to which the State (the
employer?) may find itself powerless against a Judge.”
(at
945 B-D).
The
learned Judge consequently held that a Judge is not an employee of
the State.
39
. The
position with regard to a Judge in South Africa is, of course, almost
identical to that of a Judge in Namibia, having regard
to
inter
alia
the
provisions contained in sections 165, 174, 176 and 177 of the
Constitution as well as the provisions contained in the
Judges’
Remuneration and Conditions of Employment Act, 47 of 2001
.
40.
The
position of a magistrate is somewhat different to that of a Judge in
Namibia or in South Africa. In the
Van
Rooyen
case, Chaskalson CJ, writing for the Court, held that:
“
In
the result
there
are provisions of the Magistrates Act, the Magistrates’ Courts Act
and the Regulations for Judicial Officers in the Lower
Courts as
presently formulated that fall short of what is required to ensure
the institutional independence of magistrates’ courts.
However, in
the context of the protection given to magistrates’ courts and
magistrates at an institutional level by the Constitution
itself and
by the other safeguards referred to in this judgment, the legislation
viewed as a whole is consistent with the core values
of
judicial independence
”
(emphasis supplied);
at 336 C-D [par 269]
41.
Having
regard to the institutional independence of the magistracy and for
public policy considerations, I am of the view that the
second
defendant ought not to be held vicariously liable for the
magistrates’ negligent omissions in these circumstances. The
magistrates exercised a considerable amount of discretion in
conducting the domestic violence proceedings. No control whatsoever
could be exercised over them by the second defendant, given the
magistrates’ independence. Moreover, it would not serve the public
interest in general and the interests of justice in particular to
hold the second defendant vicariously liable in these circumstances.

It would most certainly detract greatly from the fundamental doctrine
of the separation of powers and from the independence of the
magistracy as a component of the judiciary. In the premises and for
this reason only, the plaintiff’s claim against the second
defendant must fail.
42.
A
final issue for determination is the question of contributory
negligence by the plaintiff, which was pleaded in the alternative
by
both defendants. Defendants aver that plaintiff acted negligently
in:
a) testifying on 20 June 2001 that she
had laid false charges against Nelson, thus resulting in his
discharge on the first criminal
charge;
b) requesting on 20 June 2001 that the
second criminal charge be withdrawn against Nelson;
c) requesting the rescission of the
first protection order, resulting in same being set aside on 14
February 2001.
Such negligence, it was averred, had
resulted in the servants of the first defendant not initiating a
section 11 enquiry where Nelson
would have been declared unfit to
possess a firearm. It was further averred that plaintiff ought to
have foreseen that her negligence
would cause Nelson to remain in
possession of his firearm and that he could shoot her with it and in
so doing she had failed to avoid
what would have appeared to a
reasonable man to be a clear risk to life and limb.
43.
Mr
Albertus has submitted that in all the other cases (
Van
Duivenboden, Van Eeden, De Lima, Carmichele
)
the plaintiffs had been innocent victims. An apportionment of 70%
liability was sought against the plaintiff.
44.
I
have already found that, notwithstanding plaintiff’s recantation at
the criminal trial and her requests to have the second criminal
charge withdrawn and the first protection order rescinded, there were
sufficient additional
objective
evidence
available, in particular to Hoffman, to initiate a section 11
enquiry. The police’s reliance on plaintiff’s perjury
and
recantation was completely unreasonable in the circumstances. It is
correct as Counsel for the plaintiff has submitted, that
the
plaintiff did not owe the defendants a duty of care in respect of the
utterances made by her. It has now been firmly established
in our
law that the State is constitutionally obliged to afford its citizens
protection from violence. In the present case the facts
and
circumstances, cumulatively viewed, demanded that the first
defendant’s servants fulfil not only their aforementioned
constitutional
duties, but also their statutory obligations, as set
out in section 11 of the Act. To hold the plaintiff liable as a
joint wrongdoer
in these circumstances would greatly offend against
one’s sense of justice and is, in any event, not justifiable on the
facts or
on the law.
45.
I
issue the following order:
45.1 The first
defendant is ordered to pay to the plaintiff such damages as she is
able to prove for the injuries sustained by the
plaintiff as a
consequence of being shot by Dirk Nelson on 20 January 2002.
45.2 First defendant is ordered to
pay plaintiff’s costs.
45.3 Plaintiff’s
claim against the second defendant is dismissed with costs.
___________
SA MAJIEDT
JUDGE
FOR
THE PLAINTIFF
: ADV
HP VILJOEN SC and ADV AC WEBSTER
INSTRUCTED
BY : ELLIOT MARIS WILMANS & HAY
FOR
THE FIRST
AND
SECOND DEFENDANTS
: ADV
MA ALBERTUS SC and ADV Z ELOFF
INSTRUCTED
BY : TOWELL & GROENEWALD
DATE
OF HEARING : 2006-02-27 and 2006-03-02
DATE
OF JUDGEMENT
:
2006-05-05