Minister of Safety and Security v Hamilton (457/2002) [2003] ZASCA 98; [2003] 4 All SA 117 (SCA) (26 September 2003)

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[2003] ZASCA 98
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Minister of Safety and Security v Hamilton (457/2002) [2003] ZASCA 98; [2003] 4 All SA 117 (SCA); 2004 (2) SA 216 (SCA) (26 September 2003)

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
CASE NO:
457/2002
In the matter between
THE MINISTER OF SAFETY AND SECURITY
APPELLANT
and
IAN GORDON BRYN HAMILTON
RESPONDENT
CORAM
:
Howie P, Mthiyane, Conradie, Heher JJA and Van Heerden AJA
HEARD:
28 AUGUST 2003
DELIVERED
:
26
SEPTEMBER 2003
Subject:
Delict – police – legal duty to exercise reasonable care in
considering, investigating & recommending application
for firearm
licence – liability for shooting by unfit person to whom firearm
licence issued
JUDGMENT
VAN HEERDEN AJA
[
1
]
This appeal primarily concerns the question
whether the police authorities charged with considering, recommending
and issuing firearm
licences are under a legal duty (actionable by a
claim for delictual damages) to investigate information furnished to
them by the
applicant, in order properly to assess such applicant’s
suitability and fitness to possess a firearm.
[2]
On
29 September 1993 and at Stellenbosch Police Station, one Erna
Lochiel McArdell (McArdell) applied in terms of s 3(1) of the Arms
and Ammunition Act 75 of 1969 for a licence to possess a .38 Special
Rossi revolver (the revolver). At the time of making the
application,
McArdell was a 45 year old unmarried B.Com graduate
employed as an agricultural data metrician at Infruitec,
Stellenbosch. The stated
purpose for which she required the revolver
was self-protection – she lived alone and frequently travelled to
Cape Town to visit
her elderly mother. The application was
favourably considered by the relevant members of the South African
Police Force and, on
14 October 1993, the Commissioner of Police (the
Commissioner) issued the licence to McArdell.
[
3
] About
10 months later, on 6 August 1994, McArdell shot the respondent (a 22
year old student) in the back with the revolver. The
shooting
followed an altercation about a parking bay in which McArdell
confronted the respondent and his then girlfriend, Tarryn
Weber
(Weber). The incident took place in the parking area of East Lynne
Flats, Stellenbosch, where both McArdell and Weber resided
at that
time. As a result of being shot, the respondent sustained a spinal
injury and is now a tetraplegic and is permanently wheelchair-bound.
[
4
] In
July 1997, the respondent instituted proceedings in the Cape of Good
Hope High Court (the High Court), claiming delictual damages
from the
Minister of Safety and Security, the appellant. McArdell’s
psychologist at the time of the shooting, Dr Judora Spangenberg
(Spangenberg), was initially joined as the second defendant, but the
action against her was withdrawn. The basis of the respondent’s
claim against the appellant was that the police members who
considered and then recommended McArdell’s application for a
licence
to possess a firearm, as well as the Commissioner of Police
who issued the licence to her, owed members of the public (including
the respondent) a legal duty to exercise reasonable care in
considering, investigating, recommending and ultimately granting
McArdell’s
application for a firearm licence; that they
negligently breached this duty; and that their negligence was a
cause of the shooting
and consequent injuries inflicted on the
respondent. The respondent alleged, more particularly, that the
relevant police members
and the Commissioner were under a legal duty
to take reasonable steps to investigate whether McArdell was
competent and fit to possess
a firearm and that they negligently
failed to comply with this duty,
inter alia
by failing to
investigate McArdell’s ‘antecedents, character, physical and
temperamental fitness’, as referred to in para 10
of form SAP286.
The origin and significance of this form will be dealt with below.
[
5
] By
agreement between the parties, the question of liability was
separated from that of the
quantum
of damages and the trial
court was asked to deal only with the former issue. In terms of a
Rule 37 minute filed before the commencement
of the trial, it was
recorded that:
‘In
order to curtail the calling of witnesses the parties agree to the
agreed facts annexed hereto contained in the document headed
“Agreed
Facts”. No evidence will be required in proof thereof and no
adverse inferences will be drawn from the failure of either
party to
call a witness or witnesses in regard to the subject matter referred
to in the Agreed Facts. (In particular police officials
Loubser,
Groenewald and Defendant’s servants in Pretoria are contemplated.)’
[
6
] The
‘Agreed Facts’ referred to above are as follows:
‘
1 On
29 September 1993 at Stellenbosch Police Station Erna Lochiel
McArdell (“McArdell”) submitted an application for a licence
to
possess a .38 Special Rossi revolver (“the revolver”) with
manufacturer’s serial number AA193477 in terms of section 3(1)
of
the Arms and Ammunitions Act 75 of 1969 (“the Act”).
2 McArdell
handed in a form SAP271E, which form was prescribed by Regulation
2(1) of the Regulations promulgated in Government Notice
R1 474 of
Regulation
Gazette
No. 1486 of 27 August 1971.
3 A
copy of the form SAP271E as it was completed is annexed hereto marked
“A.1”.
4 Two
servants of the Defendant at the Stellenbosch Police Station, namely
Warrant Officer Loubser and Lieutenant CJ Groenewald dealt
with the
application.
5 Sections A and B of the form SAP271E were
completed by the previous owner of the firearm, viz Fruit Games CC
trading as Cape Handgun
Range, Groote Kerk Building, Adderley Street,
who were (
sic
) in lawful possession of the revolver.
6 Section C of form SAP271E was completed by
Warrant Officer EAS Loubser (of the SAP, Stellenbosch), who inserted
the details in accordance
with the information supplied by McArdell.
7 McArdell signed opposite the answer in paragraph C4 of the form
SAP271E and at the bottom of the application, after her attention
had
been drawn to the note in paragraph C13 and she had confirmed that
the information was true and correct as provided therein.
8 Warrant Officer Loubser and Lieutenant Groenewald thereafter
completed a form SAP286 in accordance with paragraphs 9-14 hereafter.
A copy of the completed form SAP286 is annexed hereto marked “A.2”.
9 Warrant Officer Loubser completed paragraphs 1 to 12 thereof and
inserted the address appearing at the foot of page 2.
10 Lieutenant Groenewald completed paragraph 13 thereof.
11 Warrant Officer Loubser and Lieutenant Groenewald made a
recommendation as contained in paragraphs 12 and 13 respectively of
the
form SAP286.
12 When the application was considered for purposes of their
recommendation at the Stellenbosch Police Station and recommended by
them, Warrant Officer Loubser and Lieutenant Groenewald relied upon
the information contained in form SAP271E, form SAP286 and a
supplement to form 271E, a notification headed “Kennisgewing” and
a form SAP91A (a fingerprint enquiry).
13 The
three lastmentioned documents are annexed hereto marked “A.3”,
“A.4” and “A.5” respectively.
14 In addition to the information contained in the aforementioned
documents Warrant Officer Loubser relied on her personal observations
of the applicant during her interview at the stage of completion of
the said forms.
15 When the Commissioner issued a licence to McArdell he relied on
the contents of the documents referred to in annexures “A.1”
to
“A.5” and the result of a fingerprint enquiry pursuant to
completion of form SAP91A.
16 In so far as information relating to McArdell’s mental stability
was concerned, Warrant Officer Loubser, Lieutenant Groenewald,
the
Commissioner and every one of the Defendant’s servants involved in
the process considered the reply given by McArdell pursuant
to the
reading of paragraph 10 on form SAP286 to McArdell during her
interview with Warrant Officer Loubser.
16.1 Paragraph 10 reads:
“10 Opmerkings met betrekking tot die applicant se verlede,
karakter, liggaamlike en temperamentele geskiktheid, kennis van
wapens,
ensovoorts…
Remarks as to the applicant’s antecedents,
character, physical and temperamental fitness, knowledge of arms,
et
cetera.
If the applicant is not a South African citizen, …”
16.2 McArdell’s reply was to the effect that
there was nothing that she could report in regard to her antecedents,
character and
temperamental fitness, knowledge of arms,
et cetera
,
which could negatively affect her application. In the premises no
further steps to test the veracity of the information and/or
allegations were considered necessary by Loubser and Groenewald.
17 McArdell was requested by Warrant Officer Loubser, in accordance
with paragraph C13 of form SAP271E to declare that the information
furnished was true and correct, which she did. In addition she was
informed that it would be an offence to knowingly make a false
statement.
18 The only further steps that were taken by First Defendant’s
servants and/or the Commissioner to test the veracity of the
representations
and allegations made by McArdell in applying for a
firearm licence were a fingerprint enquiry done at the Criminal
Records Centre
in Pretoria to establish whether she had any previous
convictions according to their records.
19 Prior to recommending and issuing of the licence to McArdell and
save as above, no further steps were taken to investigate:
McArdell’s antecedents;
McArdell’s character;
McArdell’s physical fitness;
McArdell’s temperamental fitness as stated in clause 10 of SAP286;
whether McArdell had committed any unlawful act of violence;
had threatened any unlawful act of violence;
had abused liquor;
had abused any other substance;
had been or was incapable of committing any offence by reason of
mental illness;
had a personality order;
suffered from psychotic illness;
had a history of psychotic illness;
had been hospitalised, arrested or detained for
any of the reasons in (e), (f), (g), (h), (i), (j), (k) and (l)
above.
20 No servant of the Defendant or any other State official involved
in the application and issuing of the licence communicated with;
(a) McArdell’s next of kin;
(b) McArdell’s general practitioner;
(c) McArdell’s employer;
(d) McArdell’s neighbours;
(e) any servant of Defendant who was stationed at Stellenbosch Police
Station.
21 On 14 October 1993 the Commissioner of Police issued a licence to
McArdell to possess the firearm.
22 McArdell
took possession of the firearm from Fruit Games CC.
23 The servants of Defendant and the Commissioner were acting in the
course and scope of their employment by First Defendant at all
times.
24 On 6 August 1994 at East Lynne Flats, Die Laan, Stellenbosch,
McArdell shot the Plaintiff.
25 On 26 September 1994 Dr MB Magner, a senior specialist at
Lentegeur Hospital, compiled a psychiatric report in respect of
McArdell
and concluded, after observations, that she suffered from
paranoid psychosis, alcohol abuse and a personality disorder and that
she
was not capable of appreciating the wrongfulness of her actions
at the time of the shooting.
26 On 27 September 1994 at the Magistrate’s Court, Stellenbosch,
the Additional Magistrate, SW Engelbrecht, acting in terms of
section
77(6)(a) of the Criminal Procedure Act ordered McArdell to be
detained in a psychiatric hospital, viz Lentegeur Hospital.
27 On 26 April 1995 (under Case No. 15219/94)
McArdell was declared to be incapable of managing her affairs by this
Honourable Court
and a
curator bonis
was appointed.
28 Following an incident at Stellenbosch Hospital
on 7 September 1992 in which McArdell,
inter alia
, smashed a
window pane with her hands, McArdell was sedated and conveyed on a
stretcher and by ambulance to Stikland Hospital on
8 September 1992.
29 McArdell was admitted to Stikland on 8 September 1992 where she
remained until 2 October 1992 (“the first admission”).
30 On 4 February 1993 McArdell was admitted to Stikland at her
request, where she remained until 8 February 1993 (“the second
admission”).
31 During the first and second admissions she presented as per the
Stikland records.
32 She left Stikland Hospital on 8 February 1993 without being
formally discharged.
33 On 9 February 1993 she returned for medication.
34 She visited Stikland Hospital as an out-patient on the following
dates:
(a) 26 October 1992;
(b) 9 November 1992;
(c) 7 December 1992.
35 On 1 August 1994 she had telephonic contact with the hospital.
36 On 2 August 1994 she again had contact with the hospital
telephonically.
36 On 24 September 1979 Standing Orders (Spesiale Magsorder
(Algemeen) 19B, 1979, 24 September 1979) were issued by General MCW
Geldenhuys,
the Commissioner of the South African Police,
Headquarters, Pretoria, in connection with the administration of the
Weapons (
sic
Arms) and Ammunition Act 75 of 1969. A copy is
annexed hereto marked “A.6”.
38 On 22 April 1994 in Government Notice No. R787, the Defendant
promulgated further regulations under the Arms and Ammunition Act
with immediate effect.
39 In terms of section 2(1) thereof applications for licences in
respect of the possession of the arm in question would thereafter
be
submitted to a policeman on duty at a police station on form SAP271
(set out in Schedule A). (A copy of the form SAP271 is annexed
hereto
marked “A.7.”)
40 The parties agree to the correctness of the statistics in respect
of applications for firearm licences received, approved, refused
and
re-issued as per annexure “A.8”. The columns respectively are for
applications received, approved and refused. The fourth
column
relates to the re-issue of licences which had been lost or instances
where the applicants had obtained new identity documents.’
[
7
] During
the course of the trial and after all the respondent’s witnesses
had testified, the parties agreed on certain additional
facts,
recorded in a document headed ‘Further Agreed Facts’ as follows:
‘
1 Between
the time that McArdell shot the Plaintiff and Tarryn Weber at East
Lynne and the time that she shot Judora Spangenberg and
Hermann
Spangenberg at 16 Kolbe Street on 6 August 1994:
McArdell proceeded to the home of Suzette McKerron, at 74
Jonkershoek Road, Stellenbosch, where McArdell fired two shots into

the front door glass and the frame;
McArdell proceeded to the Department of Psychology at the University
of Stellenbosch, where she fired four further bullets into
the front
door;
At the scenes referred to in (a) and (b) McArdell used the .38
Special Rossi revolver AA 193477.
2 On 7 August 1994 at 00h30 the investigating officer, Detective
Warrant Officer Bothma, visited the flat occupied by McArdell at
the
time, situated at 35 East Lynne, Die Laan, Stellenbosch. He found
the inside of the flat to be dirty and sparsely furnished.
There was
dirty crockery in the kitchen. He found a portable safe, which is
depicted on the photograph contained in the docket,
annexed hereto
marked “D”. He also found numerous empty beer tins and dirty
washing. In the bathroom cupboard he found numerous
pill containers,
of which one contained valium. His impression was of a person living
alone in shabby conditions.’
[
8
] It
was also conceded on behalf of the appellant during the course of the
trial that the bullet that was removed from the respondent’s
body
was fired from the .38 Special Rossi revolver licensed to McArdell.
[
9
] On
28 June 2002 the High Court gave judgment in the respondent’s
favour, declaring that the appellant was liable to the respondent
for
such damages as the latter suffered as a result of the attack on him
by McArdell on 6 August 1994. The appellant was ordered
to pay the
respondent’s costs up to that date.
1
With the leave of the court
a quo
, the appellant now appeals
to this Court.
[
10
] Counsel
for the appellant conceded before this Court that, on the evidence,
McArdell was indeed unfit to possess a firearm at the
relevant times,
viz when she applied for a licence (on 29 September 1993), when the
licence was issued to her (on 14 October 1993),
and during the
intervening period. In my view, this concession was a wise one. It
is clear from the agreed facts and from the evidence
placed before
the trial court that, from at least 1990 onwards, McArdell had a
history of psychological and emotional disturbance
and was receiving
counselling and therapy from several mental health professionals.
She was hospitalised in 1990 by her then psychiatrist
(a Dr
Fitzgerald) for severe stress. From May 1990 until the end of 1990,
and then again from July 1992 until 4 August 1994 (with
a break
between January and May 1994), McArdell was Spangenberg’s patient.
Spangenberg diagnosed her as having a paranoid personality
disorder,
manifesting itself in a pervasive and overwhelming tendency to be
suspicious and to feel that everyone was ‘against her’.
She was
particularly distrustful of her employers, expressing anger and
aggression towards them. Although McArdell was never under
the
influence of alcohol during her sessions with Spangenberg, the latter
was aware that she did abuse alcohol from time to time.
Spangenberg
also knew that certain psychiatric medications (such as valium) were
prescribed for McArdell by various psychiatrists,
but that she used
these irregularly and incorrectly, sometimes taking too much of the
medication, sometimes none at all, and sometimes
using the drugs in a
wrong combination with a potentially negative effect. According to
Spangenberg, McArdell’s tremor of the
hands from time to time could
be ascribed both to her general state of tension and anxiety and to
her unstable use of her prescribed
medication.
[
11
] Having
made little progress with McArdell by the end of 1990, Spangenberg
referred her to a colleague, Suzette McKerron (also a
psychologist),
who treated McArdell for some 18 months before she returned to
Spangenberg as a patient in about July 1992. McKerron
diagnosed
McArdell as suffering from a borderline personality disorder, with
paranoid traits. She testified that McArdell displayed
inappropriate
‘tremendous anger’ and lack of control of such anger, which
manifested itself when, for example, McKerron wanted
to go away on
holiday or when McKerron would do ‘something wrong in her
[McArdell’s] mind’. Like Spangenberg, McKerron never
saw
McArdell under the influence of alcohol, but the latter had told her
of instances of alcohol abuse. After a disturbing confrontation
with
McArdell during a consultation in March 1992, when McArdell
‘disassociated’ and behaved in a completely irrational and very
threatening manner, McKerron queried the diagnosis of paranoid
personality disorder with Dr Venter, a psychiatrist to whom she had
referred McArdell for treatment. Dr Venter confirmed the diagnosis.
McKerron’s conclusion was that the ‘deeper structures of
[McArdell’s] personality’ could not be changed and that she would
only respond to ‘supportive’, rather than ‘incisive’,
therapy.
[
12
] Dr
Maria van Aswegen (Van Aswegen), a general practioner who had been
consulted by McArdell from time to time during the period
1992 to
1994, noticed McArdell’s personality disturbance when she first met
her. She confirmed McArdell’s deep distrust of ‘the
fascist
system’ and of psychotherapists, as well as McArdell’s belief
that everyone was possibly part of ‘the system’ and
would reject
her. She was also aware of McArdell’s abuse of alcohol and of
prescription drugs such as valium and diazepine. Van
Aswegen was one
of the two doctors who issued medical certificates in terms of ss 12
and 22 of the Mental Health Act 18 of 1973 in
support of an urgent
application for McArdell’s reception in Stikland Hospital (a mental
institution), made on 8 September 1992
by the superintendent of
Stellenbosch Hospital. As set out in the agreed facts, this urgent
application was necessitated by McArdell’s
violent and aggressive
conduct at Stellenbosch Hospital on the night of 7 September 1992,
when she had totally lost control of herself,
smashing a thick glass
window with her bare hands and ranting and raving. She had to be
physically restrained by a number of people
in order to be sedated
intravenously and was clearly under the influence of alcohol. After
consulting with Dr Harms, a psychiatrist,
Van Aswegen diagnosed
McArdell’s mental condition on this occasion as paranoid psychosis.
Both Van Aswegen and Dr Rautenbach,
the other doctor who issued a
medical certificate in support of McArdell’s reception in Stikland,
indicated in their certificates
that she had homicidal and suicidal
tendencies, that she had no insight into or control over her emotions
during her anger outbursts,
and that she was potentially dangerous to
herself and others. Van Aswegen prescribed oral fluanxol (an
anti-psychotic drug) for
McArdell in March 1993, at the latter’s
request. On 27 September 1993 (two days before making her
application for a firearm licence),
McArdell had consulted Van
Aswegen, complaining of palpitations of the heart, severe stress and
excessive use of alcohol and cigarettes.
[
13
] The
evidence before the court
a quo
(including that of several of
McArdell’s work colleagues) and the contents of (
inter alia
)
McArdell’s Stikland file handed in at the commencement of the trial
– which contents the parties agreed were true and correct
save in
so far as any party might object thereto – certainly bear out the
conclusion of Jooste AJ that ‘one can, objectively
speaking, hardly
think of a less suitable candidate for a firearm licence than
McArdell’. Nevertheless, the appellant submitted
(i) that there
was no statutory or common law duty on the police officials involved
in processing McArdell’s application to go
beyond a consideration
of the information in the prescribed documents and an acceptance of
the veracity of the applicant’s declaration
that such information
was true and correct (and, more specifically, that such police
officials were not duty-bound in law to investigate
the personal
circumstances of individual applicants for firearm licences in the
absence of particular compelling reasons to do so);
(ii) that the
relevant police officials (acting in their capacity as the
appellant’s servants) did not negligently breach any
statutory or
common law duty to which they were subject; and (iii) that there was
no causal relationship between the conduct of
the police officials
concerned and the harm suffered by the respondent through being shot
by McArdell with her licensed revolver.
It is to a consideration of
these three propositions that I now turn.
Existence of legal duty (wrongfulness)
[
14
] This
court has indicated on several recent occasions that the enquiry as
to the existence or otherwise of a legal duty is conceptually
anterior to the question of fault, viz that liability for negligence
is conditional upon, and presupposes, wrongfulness.
2
Although there are also recent judgments of this Court in which the
question of negligence has been dealt with before the issue
of
wrongfulness
3
− and there may well be considerable merit in this approach − the
view that I take of both issues (wrongfulness and negligence)
in the
circumstances of the present case renders it unnecessary to engage in
this debate. I will therefore deal with these issues
in the order in
which they were presented by counsel.
[
15
] Counsel
for the respondent submitted that the alleged negligent conduct of
the appellant’s functionaries forming the basis of
the respondent’s
cause of action (viz the consideration and recommendation of
McArdell’s application and the issue of the licence
to her) was a
positive
act causing physical harm and hence gave rise to a
presumption of wrongfulness.
4
For the purposes of this judgment I will, however, assume in favour
of the appellant that, as contended by the appellant’s counsel,
the
allegedly negligent conduct complained of was the
failure
by
the relevant police officials adequately (or at all) to investigate
McArdell’s fitness to possess a firearm (despite an alleged
legal
duty so to do) in the course of considering her application for a
licence and before recommending and granting such application.
[
16
] The
test for determining the wrongfulness or otherwise of an omission or
failure to act in the context of an action for delictual
damages was
formulated as follows by this Court in
Van Eeden v Minister of
Safety and Security (Women’s Legal Centre Trust, as Amicus Curiae)
:
5
‘
[9]
…
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,
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 many factors which
have to be considered. See the judgment of this court in
Carmichele
[2000] ZASCA 149
;
[2001 (1) SA 489
(SCA)] at para
[7]
and recent decisions of this
court in
Cape Town Municipality v Bakkerud
2000 (3) SA 1049
(SCA) paras [14]-[17];
Cape Metropolitan Council v Graham
2001
(1) SA 1197
(SCA) para [6];
Olitzki Property Holdings v State
Tender Board and Another
2001 (3) SA 1247
(SCA) paras [11] and
[31];
BOE Bank Ltd v Ries
2002 (2) SA 39
(SCA) para [13] and
the unreported judgment of this court in
Minister of Safety and
Security v Van Duivenboden,
case No 209/2001 delivered on 22
August 2002 [now reported at
2002 (6) SA 431
(SCA)], para [16].
[10] in applying the concept of the legal convictions of the
community the Court is not concerned with what the community regards
as socially, morally, ethically or religiously right or wrong, but
whether or not the community regards a particular act or form
of
conduct as delictually wrongful. The legal convictions of the
community must further be seen as the legal convictions of the legal
policy makers of the community, such as the Legislature and Judges.’
[
17]
In
Knop v Johannesburg City Council
6
Botha JA stated that the general nature of the enquiry in this
regard is correctly set out in the following well-known passage in
Fleming
The Law of Torts
4
th
ed at 136 (as quoted
in
Administrateur, Natal v Trust Bank van Afrika Bpk
7
):
‘
In short, recognition of a duty of care is the
outcome of a value judgment, that the plaintiff’s invaded interest
is deemed worthy
of legal protection against negligent interference
by conduct of the kind alleged against the defendant. In the
decision whether
or not there is a duty, many factors interplay: the
hand of history, our ideas of morals and justice, the convenience of
administering
the rule and our social ideas as to where the loss
should fall. Hence, the incidence and extent of duties are liable to
adjustment
in the light of the constant shifts and changes in
community attitudes.’
8
[
18
] The
test as formulated in the decisions referred to above is undeniably a
broad and general one. However, it must be emphasised
that −
‘
The
very generality in which the legal principles have been expressed in
the various decisions to which I have referred is an emphatic
reminder that, both in this country and abroad, the question to be
determined is one of legal policy, which must perforce be answered
against the background of the norms and values of the particular
society in which the principle is sought to be applied. The
application
of those broad principles to particular cases in other
jurisdictions will provide insight into the weight that is attached
by that
society to various values and norms when they are balanced
against one another but that can assist only partially in the
resolution
of cases in this country. The fact that there have been
different outcomes in similar cases when those principles have been
applied
in various common-law countries merely underscores that
point. What is ultimately required is an assessment, in accordance
with the
prevailing norms of this country, of the circumstances in
which it should be unlawful to culpably cause loss.’
9
[
19
] In
this case, the ‘plaintiff’s invaded interest’ is his right to
bodily integrity and security of the person, a right long
regarded in
our law as ‘one of an individual’s absolute rights of
personality’.
10
As is abundantly clear from the inclusion of this right in the Bill
of Rights in both the 1993 and the 1996 Constitutions,
11
it is most certainly a right ‘deemed worthy of legal protection’.
12
[
20
] As
was pointed out by counsel for the respondent, even prior to the
advent of the 1993 and 1996 Constitutions, our law recognised
that
‘the police are under a positive duty in law to protect citizens
from assault when in a position to do so and that, if they
negligently fail to do so, the State will be liable in damages’.
13
In terms of s 5 of the Police Act 7 of 1958, the statute governing
the organization and control of the South African Police at the
time
of the application for, and issue of, McArdell’s firearm licence:
14
‘The
functions of the South African Police shall be,
inter alia
–
(
a)
the preservation of the internal
security of the Republic;
(
b
) the maintenance of law and order;
(
c)
the investigation of any offence or
alleged offence; and
(
d
) the prevention of crime.’
In the words of Rumpff CJ in
Minister
van Polisie v Ewels,
15
‘[w]at misdaad betref, is die polisieman nie net afskrikker of
opspoorder nie, maar ook beskermer.’
[
21
] The statutory framework
within which applications for licences to possess firearms are made
and considered is provided by the Arms
and Ammunition Act 75 of 1969
(the Act), the regulations promulgated under s 43 of the Act in
Government Notice R1474 of Regulation
Gazette
No. 1486
(Government
Gazette
No. 3238) of 27 August 1971 (the
Regulations), and the Special Force Order (‘Spesiale Magsorder
(Algemeen)’ 19B, 1979) issued
on 24 September 1979 by the then
Commissioner of the South African Police ‘in verband met die
administrasie van die Wet op Wapens
en Ammunisie 1969 (Wet 75 van
1979)’ (the Special Force Order).
[
22
] In
terms of s 3(1) of the Act:
‘
On application in the prescribed manner and
payment of the prescribed licence fee in the said manner by any
person other than a person
under the age of 16 years or a
disqualified person,
16
the Commissioner may, in his discretion, but subject to the
provisions of subsections (3), (4) and (6) and sections 7 and 33(2),
issue
to such person a licence to possess the arm described in such
licence.’
[
23
] At
the time McArdell applied for her firearm licence, regulation 2(1) of
the Regulations provided that:
‘
An application for a licence to possess an arm
under section 3 of the Act shall be made by the handing to the
Commander of the police
station of the area in which the applicant
resides, of form SAP 271A (Afrikaans) or SAP271E (English), as set
out in Annexure A,
completed in so far as is applicable.’
[
24
] Section C of the printed
form SAP271E, as utilised in McArdell’s application for a firearm
licence, required recordal of the applicant’s
personal particulars,
provision being made for the verification of such particulars by the
South African Criminal Bureau and the
Department of Home Affairs.
Details had to be furnished in respect of,
inter alia
, the
following aspects: (i) the purpose for which the firearm was
required; (ii) previous convictions of an offence or offences
in
consequence of which the applicant’s fingerprints were taken;
(iii) previous loss by the applicant of any firearm in his or
her
possession; (iv) whether the applicant had ever been declared unfit
to possess a firearm; (v) whether a firearm in the possession
of the
applicant had ever been confiscated; and (vi) whether the applicant
had ever been refused a licence to possess a firearm.
17
At the end of the form, the applicant’s attention was specifically
drawn to the provisions of s 39(1)(
f
) of the Act, in terms of
which any person who knowingly makes any false statement on the form
is guilty of a criminal offence.
[
25
] In addition to the
prescribed form SAP271E, McArdell was also required to sign a
supplement to this form on which it was recorded
(
inter alia
)
that she owned a safe, as well as a document headed ‘Kennisgewing'.
[
26
] As indicated above, on 24
September 1979, the then Commissioner of Police issued a very
extensive and detailed special force order
(‘spesiale magsorder’)
concerning the administration of the Act. It was this Special Force
Order that gave rise to form SAP286.
In the case of McArdell, form
SAP286 was completed in Afrikaans and the only version of the Special
Force Order made available by
the appellant and annexed to the
‘Agreed Facts’ is also in Afrikaans. Like the court below,
therefore, I will refer to the Afrikaans
version of both form SAP286
and the Special Force Order.
[
27
] Paragraph 14(1) of the
Special Force Order stipulates that ‘’n verslag op vorm SAP286
moet in alle gevalle van aansoeke om lisensies
om wapens te besit,
voltooi word.’ Paragraph 10 of form SAP286 requires the police
member processing an application for a firearm
licence to enter
‘[o]pmerkings met betrekking tot die applikant se verlede,
karakter, liggaamlike en temperamentele geskiktheid,
kennis van
wapens, ensovoorts’ and provides further that, ‘[i]ndien die
applikant nie ‘n Suid-Afrikaanse burger is nie moet
TWEE
getuigskrifte deur verantwoordelike persone dat die applikant van
goeie karakter is, ingehandig word.’ The latter requirement
appears to reflect (albeit not accurately) the provisions of para
3(3) of the Special Force Order, in terms of which ─
‘
Iemand wat nie ‘n Suid-Afrikaanse burger is
nie
en tydelik in die Republiek is,
wat wens om ‘n lisensie
om ‘n wapen te besit, te bekom, moet ‘n geldige paspoort, ‘n
permit om in die Republiek te vertoef
en twee getuigskrifte dat hy
van goeie karakter is, voorlê.’
(Emphasis
added.)
I am in agreement with Jooste AJ’s
conclusion that the reason for the requirement of testimonials
only
in respect of non-South African citizens
who are temporarily in
the Republic
‘seems obvious: South African citizens, and
foreigners permanently resident in the Republic, would be known in
the community and
enquiries could easily be made regarding their
standing in the community, etc.’
18
[
28
] Further pertinent
requirements set in form SAP286 are a
motivated
recommendation
by the police member processing the application (in this case,
Warrant Officer Loubser), as well as comment by and
the
recommendation of the member in charge of the relevant police station
(in this case, Lieutenant Groenewald).
19
[
29
] The purpose of these
requirements set by form SAP286 appears from the Special Force Order,
the relevant paragraphs of which for
present purposes read as
follows:
“
14.
POLISIEVERSLAG
OOR APPLIKANT
...
(4) Die bevelvoerder van die polisiestasie moet
sy kommentaar en aanbeveling in die toepaslike ruimte op die
verslagvorm aanbring
en
toesien
dat die verslag in
alle
opsigte volledig en korrek
voltooi is. Aanbevelings moet
behoorlik
gemotiveer word.
(5) Indien die bevelvoerder van ‘n polisiestasie na die mening van
sy distrikskommandant, nie oor die nodige ondervinding en goeie
oordeel beskik om ‘n aanbeveling te doen nie, moet gereël word
dat aansoeke tesame met die bevelvoerder se aanbeveling aan
die
distrikskommandant gestuur word. Die distrikskommandant stuur dan
die aansoek met sy kommentaar en aanbeveling aan Hoofkantoor.
15
FAKTORE
WAT IN AANMERKING GENEEM MOET WORD WANNEER AANBEVELINGS GEDOEN WORD
(1)
Geskiktheid
van applikant
Streng beheer oor die uitreiking van lisensies
om wapens te besit, is met die oog op landsveiligheid van die
allergrootste belang
en dit is
noodsaaklik
dat ‘n
bevelvoerder wat ‘n aansoek om ‘n lisensie aanbeveel
tevrede
moet wees dat die applikant
in alle opsigte ‘n bevoegde en
geskikte
persoon is om die wapen te besit.
Sonder
uitsondering
moet die applikant aan
twee basiese
vereistes voldoen, te wete (i) hy moet ‘n geskikte en bevoegde
persoon wees, en (ii) daar moet ‘n noodsaaklikheid
bestaan om ‘n
wapen te besit.
(a) By geskiktheid word bedoel dat die applikant
fisies en geestelik geskik
geag moet word om ‘n vuurwapen te
kan besit; d.w.s., het hy vorige veroordelings en wat is die aard
daarvan; kan hy en weet hy
hoe en wanneer om ‘n vuurwapen te
gebruik en mag gebruik (
sic
), en is hy
temperamenteel
geskik
– is hy nie opvlieënd van geaardheid, geneig tot
geweld of losbandig nie.
...
(5) Nie-Suid-Afrikaanse burgers moet aan
strenger
toetse
onderwerp word, veral wat noodsaaklikheid betref...
(6)
Gesindheid
van applikant teenoor die ander bevolkingsgroepe
Dit is
vir die bevordering van landsveiligheid
noodsaaklik
dat wapenlisensies nie aan persone wat vyandig
gesind is teenoor ander bevolkingsgroepe en die land in die algemeen,
uitgereik word
nie. Bevelvoerders moet gevolglik in
alle gevalle
waar aansoeke om lisensies aanbeveel word hierdie aspek in gedagte
hou.’
(Emphasis added.)
[
30
] Counsel for the
appellants went to considerable lengths to persuade this Court that
the ‘only relevant statutory provisions’
were the abovementioned
provisions of the Act and the Regulations, and that the Special Force
Order was simply a collection of administrative
directives, with no
statutory force. I am not persuaded by this argument, however. It
would appear that the Special Force Order
was issued by the incumbent
Commissioner of Police pursuant to the provisions of regulation 6 of
the Regulations for the South African
Police (1964).
20
In terms of regulation 6(1), the Commissioner
controlled the Police Force by issuing orders and instructions which
–
‘
(
a
) in
terms of the Act or these regulations shall or may be prescribed by
him;
(
b
) are not inconsistent with the Act or
these regulations and which he deems necessary or expedient for
efficient administration or
the achievement of the objects of the Act
or these regulations.’
Regulation 6(2) provided that orders
and instructions ‘of a permanent nature may be issued by the
Commissioner as “Standing”
or “Force Orders”’, while
regulation 6(4) stipulated that ‘[o]rders and instructions issued
in terms of subregulations (1),
(2) and (3)
shall
be obeyed
by all members to whom such orders and instructions are applicable.’
21
(Again my emphasis.)
[
31
] In terms of s 10 of the
Police Act of 1958, failure by a police member to comply with ‘an
order issued in terms of’ the said
Act amounted to misconduct,
while such failure also constituted a criminal offence under s 9 of
the Act.
[
32
] To my mind, it is clear
from the above that the Special Force Order was indeed at all times
pertinent to this case a ‘relevant
statutory provision’ for the
purposes of considering and recommending applications for firearm
licences, and that this Order imposed
statutory duties on the police
members involved in this process.
22
The language in which the abovementioned provisions of the Special
Force Order (and the corresponding paragraphs of form SAP286),
are
couched leaves no room for any construction other than that contended
for by the respondent, viz that the police members involved
in
processing an application for a firearm licence in terms of s 3(1) of
the Act are, as a general rule, duty-bound in law to do
more than
simply take the applicant’s fingerprints and mechanically complete
the prescribed forms, relying solely on – and accepting
the
veracity of – the information given to them by the applicant and
their personal observations of the applicant during the interview
at
the stage of making the application. It is both logical and
reasonable that this should be so. As counsel for the appellant
put
it to a number of the respondent’s witnesses during the course of
the trial, even seriously mentally disturbed and potentially
dangerous people can present themselves to the lay observer as
perfectly normal. Thus, Professor Zabow, a psychiatrist who gave
evidence as an expert on behalf of the respondent in the court
a
quo
, confirmed that a personality disorder, even one amounting to
a serious mental illness (from which, in his expert opinion, McArdell
suffered at all relevant times), is an ‘extremely difficult thing
to diagnose’. It is not something that is necessarily easily
detectable in the ordinary course of daily activities. This being
so, it follows that, subject to possible exceptional cases,
23
the relevant police members are under a legal duty to take proper
measures to screen an application for a firearm licence by making
such enquiries as are reasonable in the circumstances to corroborate
the veracity of the information furnished to them by the applicant
in
relation to his or her physical, temperamental and psychological
fitness to possess a (potentially lethal) firearm.
[
33
] This duty is particularly
important in a country where high levels of violence are notorious
and are fostered to a significant degree
by access to firearms.
Official statistics
24
reveal that the proportion of murders committed with a firearm
increased from 42 per cent in 1994 to 49 per cent in 1998. It is
obvious that, should firearm licences be issued to unfit persons,
then the bodily integrity, safety and security, and even the lives,
of members of the general public are potentially at risk. Thus, the
imposition of such a legal duty on the relevant police members
is, in
my view, clearly reasonable and ‘congruent with the court’s
appreciation of the sense of justice of the community’.
25
[34
] That ‘unfit persons’,
in the interests of public safety and security, must
not
be
legally permitted to possess firearms, is underscored by the
provisions of Part II (ss 11 to 17) of the Act, dealing with the
declaration of persons to be unfit to possess firearms. The evidence
in this case shows conclusively that McArdell was, at the time
of her
application for a licence and the issue of such licence to her, a
person ‘whose possession of an arm is not in the interest
of that
person or any other person as a result of [her] mental condition,
[her] inclination to violence, whether an arm was used
in the
violence or not, or [her] dependence on intoxicating liquor or a drug
which has a narcotic effect’.
26
As was recently noted by this Court in dealing with the provisions
of s 11 of the Act:
‘
Licences to possess firearms are not issued to
enable the holders to shoot themselves or to shoot innocent persons
who happen to be
in the way… nor do firearms belong in the hands of
drunks. I have little doubt that responsible police officers share
that view…
’.
27
[
35
] The fact that the police
are under a legal duty to take proper measures to screen applications
for firearm licences, as discussed
above, does not necessarily mean
that a breach of such duty should found a private law action for
damages. As indicated above, whether
or not statutory duties
translate into private law duties actionable by a claim for damages
is a question of legal policy, to be
determined ‘not [by] an
intuitive reaction to a collection of arbitrary factors but rather a
balancing against one another of identifiable
norms’.
28
In casu
, the individual’s right to life, bodily integrity
and security of the person must be balanced against policy
considerations such
as the efficient functioning of the police, the
availability of resources and the undoubted public importance of the
effective control
of firearms. To my mind, in the present case, as
in
Van Duivenboden
,
29
it can be stated that one is
not
dealing with a situation
involving ‘particular aspects of police activity in respect of
which the public interest is best served
by denying an action for
negligence’. Here too, there ‘is no effective way to hold the
State to account… other than by way
of an action for damages
30
.
Moreover, the spectre of the opening of the ‘floodgates of
litigation’ and the resultant ‘chilling effect’ of potential
limitless liability on the efficient and proper performance by the
police of their primary functions – relied on very heavily by
the
appellant as a ground for denying the existence of a legal duty on
the relevant police members in the circumstances of the present
case
– is no more convincing here than it was in either
Van
Duivenboden
31
or
Van Eeden.
32
In the words of Vivier ADP in the latter case:
33
‘…
our Courts do not confine liability for an
omission to certain stereotypes but adopt an open-ended and flexible
approach to the question
whether a particular omission to act should
be held unlawful or not. In deciding that question the requirements
for establishing
negligence and causation provide sufficient
practical scope for limiting liability’.
34
[36
] For the above reasons, I
have reached the conclusion that there was indeed a legal duty on the
relevant police members as contended
for by the respondent. The
source of this legal duty is both the common law and the statutory
provisions analysed above. I have
reached this conclusion without
relying
directly
on the provisions of the Bill of Rights in
either the 1993 or the 1996 Constitutions (both of which, as
indicated above, came into
operation
after
the dates relevant
to the present matter and neither of which has retrospective
operation), and without seeking to resolve the
constitutional
issue left open in
Amod v Multilateral Motor Vehicle
Accidents Fund (Commission for Gender Equality Intervening)
,
35
Brummer v Gorfil Brothers Investments (Pty) Ltd and Others
36
and
Afrox Healthcare
Bpk v Strydom,
37
all of which cases were canvassed in considerable detail in the
appellant’s heads of argument before this Court. I am, however,
satisfied that the existence of a legal duty on the police in these
circumstances is entirely consistent with the norms and values
of
South African society as embodied in both Constitutions.
Negligence
[
37
] The following question is
whether or not the relevant police members (acting in their
capacities as the servants of the appellant)
negligently breached the
said legal duty resting upon them. The classic test for establishing
the existence or otherwise of negligence,
quoted with approval in
numerous decisions of this Court, is that formulated by Holmes JA in
Kruger v Coetzee
38
in the following terms:
‘
For the purposes of liability
culpa
arises if –
a
diligens paterfamilias
in the position
of the defendant –
would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial
loss;
and
would take reasonable steps to guard against such occurrence; and
the defendant failed to take such steps…
…
Whether a
diligens paterfamilias
in the
position of the person concerned would take any steps at all and, if
so, what steps would be reasonable, must always depend
upon the
particular circumstances of each case. No hard and fast basis can be
laid down.
’
[38
] On the facts as admitted,
agreed and proved, McArdell was at the relevant times certainly unfit
to possess a firearm on the basis
of personal characteristics
detailed in (
inter alia
) s 11(1)(
c
) of the Act and para
15(1) of the Special Force Order. Nevertheless, and without making
even the most perfunctory of enquiries to
verify the information
furnished to them by McArdell, the relevant police members
recommended her application for a firearm licence
and thereafter, in
reliance on this recommendation, the Commissioner issued such a
licence to her. As the court below stated, ‘[o]ne
clearly cannot
expect the police to do an in-depth investigation into each and every
person that applies for a firearm licence. This
would be an
impossible task, given the limitations on their manpower and
resources.’
39
What would constitute proper measures to be taken by the police to
comply with the legal duty imposed upon them in this regard will
obviously depend on the particular circumstances of each application.
However, as pointed out by Jooste AJ –
40
‘
One would think that making two telephone
calls, one to the applicant’s next of kin or a close friend, and
another to the applicant’s
employer, would suffice.
Only if
anything in
the reports of two such referees raises
questions about the possible suitability of the
applicant,
would they have to investigate the matter further
.’
41
(Emphasis added.)
[
39
] In my view, a reasonable
person in the position of the appellant’s servants would have
foreseen that, in the absence of any such
corroborative enquiries, an
applicant for a firearm licence who – like McArdell – was clearly
unfit to possess a firearm, might
have a firearm licence issued to
him or her and that this might well result in harm being inflicted on
a member of the general public
such as the respondent. Furthermore,
reasonable police officials in the position of Loubser and Groenewald
would, to my mind, have
questioned McArdell considerably more
thoroughly in respect of her ‘antecedents, character, physical and
temperamental fitness,
knowledge of arms etc’;
42
would also have sought verification of the information furnished by
McArdell from her mother and her employer; and would not have
recommended McArdell’s application to the Commissioner without
having taken these basic steps.
[
40
] I am in agreement with
the conclusion of the court below
43
that, had Loubser and/or Groenewald taken the reasonable precaution
of making enquiries as to McArdell’s fitness to possess a firearm
by telephoning McArdell’s mother and her employer, they would have
been alerted to the fact that
‘... McArdell was a person with a history of mental instability and
violent incidents. This would surely have set the red lights
flickering and led to further investigation.’
[
41
] It is clear from the
evidence before the court
a quo
(particularly that of
McArdell’s colleague, Marietjie Marais; that of Jacobus de Bruyn,
the assistant-director of McArdell’s
employer and the responsible
person in the event of any enquiry having been made; and the
‘history’ telephonically obtained
from McArdell’s mother by
the staff at Stikland during McArdell’s institutionalization there
in September 1992) that, had Loubser
and/or Groenewald spoken to
McArdell’s mother and her employer, they would probably have been
alerted to her disrupted childhood
and ‘persecution complex’
(‘vervolgingswaan’), her psychological problems, her previous
treatment and institutionalization,
her aggression, her misuse of
alcohol and/or prescription drugs and the strongly-held belief that
she was unfit to possess a firearm.
Once alerted to these
characteristics, it is highly unlikely that these police members
would have recommended to the Commissioner
that McArdell have a
firearm licence issued to her, and equally unlikely that the
Commissioner would have issued such a licence.
Like the Court
a
quo –
‘
I ... have little difficulty in finding that
the police officers at Stellenbosch, and especially Warrant Officer
Loubser, acting in
the course and scope of their employment with
defendant, acted negligently in making the recommendation to the
Commissioner to issue
a firearm licence to McArdell ... Had they
apprised themselves of the true facts and conveyed these to the
Commissioner, the Commissioner
would surely not have exercised his
discretion in applicant’s favour.’
44
Causation
[
42
] The last aspect to be
considered is whether the respondent discharged the onus of proving
that the wrongful and negligent conduct
of the police, as discussed
above, was a cause of his being shot by McArdell and consequently
injured. In the oft-quoted case of
International Shipping Co
(Pty) Ltd v Bentley,
45
Corbett CJ explained that ─
‘
As has previously been pointed out by this
Court, in the law of delict causation involves two distinct enquires.
The first is a factual
one and relates to the question as to whether
the defendant’s wrongful act was a cause of the plaintiff’s loss.
This has been
referred to as “factual causation”. The enquiry
as to factual causation is generally conducted by applying the
so-called “but-for”
test, which is designed to determine whether
a postulated cause can be identified as a
causa sine qua non
of the loss in question. In order to apply this test one must make a
hypothetical enquiry as to what probably would have happened
but for
the wrongful conduct of the defendant. This enquiry may involve the
mental elimination of the wrongful conduct and the substitution
of a
hypothetical course of lawful conduct and the posing of the question
as to whether upon such an hypothesis plaintiff’s loss
would have
ensued or not. If it would in any event have ensued, then the
wrongful conduct was not a cause of the plaintiff’s loss;
aliter,
if it would not so have ensued. If the wrongful act is shown in this
way not to be a
causa sine qua non
of the loss suffered, then
no legal liability can arise. On the other hand, demonstration that
the wrongful act was a
causa sine qua non
of the loss does not
necessarily result in legal liability. The second enquiry then
arises, viz whether the wrongful act is linked
sufficiently closely
or directly to the loss for legal liability to ensue or whether, as
it is said, the loss is too remote. This
is basically a juridical
problem in the solution of which considerations of policy may play a
part. This is sometimes called “legal
causation” ... Fleming
The
Law of Torts
7
th
ed at 173 sums up this second enquiry
as follows:
“The second problem involves the question whether, or to what
extent, the defendant should have to answer for the consequences
which his conduct has actually helped to produce. As a matter of
practical politics, some limitation must be placed upon legal
responsibility,
because the consequences of an act theoretically
stretch into infinity. There must be a reasonable connection between
the harm threatened
and the harm done. This inquiry, unlike the
first, presents a much larger area of choice 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.”’
[
43
] In regard to the first
leg of the enquiry (factual causation), it must be remembered that a
plaintiff is not required to prove the
causal link with certainty,
but simply to establish that the wrongful and negligent conduct
complained of was probably a cause of
the loss sustained. This
enquiry –
‘
... calls for a sensible retrospective analysis
of what would probably have occurred, based upon the evidence and
what can be expected
to occur in the ordinary course of human affairs
rather than an exercise in metaphysics.’
46
[
44
] As already stated, I am
of the view that, had the relevant police members executed their
legal duties properly, they would have
come to the compelling
conclusion that McArdell was not fit to possess a firearm. This
information would have been conveyed by them
to the Commissioner and
the latter would not have issued the licence to her. There is no
evidence to suggest that McArdell was likely
to have acquired
possession of a firearm unlawfully had her application for a licence
been refused. The refusal of her application
would not, of course,
necessarily have prevented her from ‘snapping’ and losing control
on 6 August 1994 (as she had done less
than a year before at the
Stellenbosch Hospital). However, in the words of the Court
a
quo
:
47
‘The difference is that in 1992 McArdell, without a firearm licence
and a firearm, broke thick glass windows and equipment and
injured
herself, but caused no harm to other people. In 1994, having
acquired a firearm pursuant to her having been granted the
licence,
McArdell shot [Dr Spangenberg,] Dr Spangenberg’s husband, Ms Weber
and more pertinently, plaintiff.’
[45]
In light of the above,
the respondent clearly established, on the requisite balance of
probabilities, ‘a direct and probable chain
of causation’ between
the wrongful and negligent conduct of the relevant servants of the
appellant and the shooting of the respondent
on 6 August 1994.
48
[
46
] As regards the second leg
of the causation enquiry (legal causation or remoteness), it was not
seriously argued by counsel for the
appellant that, should all the
other components of the respondent’s cause of action be
established, the loss suffered by the respondent
was not linked
sufficiently closely or directly to the negligence of the appellant’s
servants for legal liability to ensue. I
can think of no
considerations of reasonableness, fairness or legal policy which
would justify a conclusion that the respondent’s
loss is, in the
circumstances of the present case, too remote.
[
47
] In the result, the appeal
is dismissed with costs, including the costs occasioned by the
employment of two counsel.
_______________________
BJ
VAN HEERDEN
Acting Judge of Appeal
Concur
:
Howie P
Mthiyane JA
Conradie JA
Heher JA
1
The judgment of the court
a quo
(per Jooste AJ) is reported
as
Hamilton v Minister of Safety and Security
[2003] 1 All SA
678
(C).
2
See, for example,
Administrateur, Transvaal v
Van der Merwe
[1994] ZASCA 83
;
1994 (4) SA 347
(A) at 364G-H;
Cape Town
Municipality v Bakkerud
2000 (3) SA 1049
(SCA) para [9] at
1054H-I;
Minister of Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) para [38] at 453B-C;
Premier of the
Province of the Western Cape v Fair Cape Property Developers (Pty)
Ltd
[2003] 2 All SA 465
(SCA) para [49] at 481C
.
3
See, for example,
Sea Harvest Corporation Pty
Ltd and Another v Duncan Dock Cold Storage (Pty) Ltd and Another
2000 (1) SA 827
(SCA) para [19] at 837G–838B and at 838H-I;
Mkhatswa v Minister of Defence
2000 (1) SA 1104
(SCA) para
[18] at 1111F-G;
S M Goldstein & Co (Pty) Ltd v Cathkin Park
Hotel (Pty) Ltd and Another
2000 (4) SA 1019
(SCA) para [7] at
1024F;
Mostert v Cape Town City Council
2001 (1) SA 105
(SCA)
para [43] at 120I-121B;
Minister of Safety and Security v Van
Duivenboden
above (n2) para [12] at 442A-B.
4
See
Van Duivenboden
above (n2) para [12]
at 441E-F.
5
2003(1) SA 389 (SCA) paras [9]-[10] at 395H-396E
(per Vivier ADP).
6
1995 (2) SA 1
(A) at 27F-I.
7
1979 (3) SA 824
(A) at 833
in fine
-834A
(per Rumpff CJ).
8
See too
Van Duivenboden
above (n2) para
[13] at 442C-E.
9
Van Duivenboden
above (n2) para [16] at
444B-E (per Nugent JA)
10
Minister of Justice v Hofmeyr
[1993] ZASCA 40
;
1993 (3) SA
131
at 145I-146C. In that case, Hoexter JA stated simply that
‘[t]he plain and fundamental rule is that every individual’s
person
is inviolable’ (at 153D-E).
11
Constitution of the Republic of South Africa Act
200 of 1993 (date of commencement 27 April 1994)
s 11, Constitution of the
Republic of South Africa Act 108 of 1996 (date of commencement 4
February 1997) s 12.
12
See the quotation from Fleming
The Law of Torts
4
th
ed at 136 in para [17] above.
13
Van Duivenboden
above (n2) para [33] at
451I; see too
Van Eeden
above (n5) para [18] at 399A-D.
14
Act 7 of 1958 was replaced by the
South African
Police Service Act 68 of 1995
which commenced on 15 October 1995.
15
1975 (3) SA 590
(A) at 597G.
16
A ‘disqualified person’ is a person who has
been declared or is deemed to have been declared to be unfit to
possess a firearm
under
Part II
(ss
11
-
17
) of the Act and is
therefore prohibited from having a firearm in his or her possession:
see definition of ‘disqualified person’
in subsec 1(1) of the
Act, read together with subsec 15(2).
17
Paragraphs 3 to 8 of Form SAP271E.
18
See the reported judgment (n1) at 692c-d.
19
Paragraphs 12 and 13 of form SAP286,
respectively.
20
Made by the then State President under the powers
vested in him at that time by s 33 of the Police Act 7 of 1958 and
published in
Government Notice R203 of Regulation
Gazette
No.
299 (Government
Gazette
No. 719) of 14 February 1964 (see, in
particular, paras (
m
) and (
w
) of subsec 33(1) of the
Police Act, read together with s 4 thereof).
21
See further in this regard Joubert ed
The Law
of South Africa
(
LAWSA
) Vol 20 (1984) para 240 at 277-8.
22
See, in this regard,
Van Duivenboden
above
9 (n2) para [27] at 451F-G.
23
The stereotypical example of the applicant for a
firearm licence being the local minister of religion, whom the
police officers
processing the application have known for many
years, springs to mind here.
24
See Kane-Berman
et al
South Africa Survey: 2001/2
(SA
Institute of Race Relations Official Yearbook) at 98. According to
the same source, 3.5 million persons in South Africa between
them
have been given legal permission to possess some 4.2 million
firearms, with a similar number of illegally possessed firearms
being estimated to be in circulation.
25
Olitzki Property Holdings v State Tender Board and Another
2001 (3) SA 1247
(SCA) para [12] at 1257E-F (per Cameron JA).
26
Paragraph (
c
) of subsec 11(1) of the Act.
27
Van Duivenboden
above (n2) para [27] at 450B-C (per Nugent
JA).
28
Van Duivenboden
above [n2] para [21] at
446 F-G
29
Op cit
para [22] at 448A-B
30
Op cit
para [22] at 448D-E.
31
Op cit
para [19] at 445D-E and paras [22]-[23] at 448C-G.
32
Van Eeden v Minister of Safety and Security
above (n5) para
[22] at 400C-E (per Vivier ADP).
33
Loc cit.
34
See too
Cape Town Municipality v Bakkerud
above (n2) para
[31] at 1060J–1061A (per Marais JA).
35
1999 (4) SA 1319
(SCA) para [30] at 1332G-H (per Mahomed CJ).
36
[2000] ZACC 3
;
2000 (2) SA 837
(CC) para [4] at 840A-C (per Yacoob J).
37
2002 (6) SA 21
(SCA) para [17] at 36J-37C (per Brand JA).
38
1966 (2) SA 428
(A) at 430E-G.
39
See the reported judgment (n1) at 693c.
40
At 693c-d.
41
In this regard, it is interesting to note that, in Section C of the
‘new’ form SAP271, which replaced the existing forms SAP271A
(Afrikaans) and SAP271E (English) with effect from 22 April 1994
(see paras 38-39 of the ‘Agreed Facts’ set out above), provision
is made for the recordal of the home and work telephone numbers of
the applicant, while Section E poses questions relating to the
applicant’s receipt of medical treatment ‘for a nervous or
mental deviation’ and, if so, whether the applicant takes ‘any
prescribed medication or by any other means (
sic
)’;
requires details of any ‘series of sedative-, tranquilizing-,
narcotic drugs or medication for other reasons’ taken by
the
applicant during the 5 years preceding the date of the application;
and also queries the existence or otherwise of ‘any
circumstances
with regard to your health which could influence this application’.
42
See para 10 of form SAP286.
43
See the reported judgment (n1) at 693d-e.
44
See the reported judgment (n1) at 693g-h.
45
1990 (1) SA 680
(A) at 700E-701C.
46
Van Duivenboden
above (n2) para [25] at 449E-F.
47
See the reported judgment (n1) at 697e-f.
48
See too
Van Duivenboden
above (n2) paras
[28]-[30] at 450H-451E.