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[1994] ZASCA 138
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Minister of Law and Order v Kadir (246/93) [1994] ZASCA 138; 1995 (1) SA 303 (AD); [1995] 1 All SA 457 (A) (29 September 1994)
REPORTABLE
CASE NO.
246/93
EB
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE
DIVISION
)
In the matter between:
MINISTER OF LAW
AND ORDER
APPELLANT
and
A M
KADIR
RESPONDENT
CORAM
: HEFER, NESTADT, NIENABER, VAN
DEN
HEEVER et HARMS JJA
DATE OF HEARING
: 20 SEPTEMBER
1994
DATE OF JUDGMENT
: 29 SEPTEMBER
JUDGMENT
HEFER JA/....
2
HEFER JA:
I shall refer to the parties to the appeal by their titles in the Court
a quo
where the present respondent was the plaintiff and the present
appellant the defendant. The appeal is against the dismissal of an
exception
taken by the defendant against the plaintiff's particulars of claim on the
ground that it lacks averments which are necessary
to sustain the action. The
Court
a quo's
judgment has been reported sv
Kadir v Minister of Law
and Order
in
1992 (3) SA 737
(C). A recital of the facts pleaded (together
with the detailed grounds for the exception) appears at 738 B - 739 E of the
report.
For present purposes only a brief restatement is required.
The plaintiff is seeking to recover damages allegedly suffered on account
of his inability to claim compensation for personal injuries
from the Fund
established by the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989. The
injuries were sustained when he lost
control over his vehicle in swerving to
avoid a collision with a bundle of clothing which had fallen from a vehicle
travelling ahead
of him. Since there was no contact between the
3
vehicles or with the bundle, a claim against the Fund could, in terms of
the regulations promulgated under the Act, only be maintained
if the driver or
owner of the other vehicle could be identified. This was impossible because the
policemen who "attended the scene"
shortly after the incident and were
"investigating the collision" when the driver returned in the vehicle to
retrieve the bundle,
failed to "take down the necessary information relating to
the driver and the identity of the said vehicle." Their failure is alleged
to
have constituted a breach of a legal duty which they owed to the
plaintiff.
The particulars of claim were plainly drafted on the
basis of the judgment in
Minister van Polisie v Ewels
1975 (3) SA 590
(A)
in which Rumpff CJ, observed at 596 G - 597 A that the general rule against
delictual liability arising from omissions had developed
to the stage where it
is accepted that cases may occur where there is a legal duty to prevent harm to
others, that failure to comply
with such a duty constitutes a
wrongful
(and thus actionable) omission, and that liability for such an omission is not
limited to certain types of cases. The learned Chief
Justice then proceeded to
say at 597 A-C:
4
"Dit skyn of die stadium van ontwikkeling bereik is waarin 'n late as
onregmatige gedrag beskou word ook wanneer die omstandighede
van die geval van
so 'n aard is dat die late nie alleen morele verontwaardiging ontlok nie maar
ook dat die regsoortuiging van die
gemeenskap verlang dat die late as onregm
atig beskou behoort te word en dat die gelede skade vergoed behoort te word deur
die persoon
wat nagelaat net om daadwerklik op te tree. Om te bepaal of daar
onregmatigheid is, gaan dit, in 'n gegewe geval van late, dus nie
oor die
gebruiklike 'nalatigheid' van die
bonus paterfamilias
nie, maar oor die
vraag of, na aanleiding van al die feite, daar 'n regsplig was om redelik op te
tree."
This has since become the accepted norm for
determining the wrongfulness of omissions in delictual actions for the recovery
of economic
loss.
(Administrateur. Natal v Trust Bank van Afrika Bpk
1979
(3) SA 824
(A);
Osborne Panama SA v Shell & BP South African Petroleum
Refineries (Pty)
Ltd and Others
1982 (4) SA 890
(A) at 900 fin - 901 A;
Lillicrao, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd
1985 (1) SA 475
(A) at 498 G-l;
Bayer South Africa (Pty) Ltd v Frost
[1991] ZASCA 85
;
1991
(4) SA 559
(A) at 570 E-F;
Indac Electronics (Pty) Ltd v Volkskas Bank
Ltd
[1991] ZASCA 190
;
1992 (1) SA 783
(A) at 796 E - 797 F;
Arthur E Abrahams &
Gr
oss v Cohen and Others
1991 (2) SA 301
5
(C) at 307 1 - 309 G.) In
Administrateur. Natal v Trust Bank van
Afrika Bpk
supra
Rumpff CJ, after indicating at 833 C-D
that policy considerations are a
feature common to both the South
African concept of a legal duty and the
English notion of a "duty of care" (in so far as the latter has a bearing
on
wrongfulness), quoted with approval
inter alia
from
Fleming:
The Law of Torts
(4 ed) at 136. The relevant passage (which appears in truncated form at
128
of the 7th (1987) edition of Fleming's work) reads as follows:
"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".
In the present case the defendant has placed
the wrongfulness of the policemens' failure to record the relevant information
in issue.
Par (a), (b) and (c) of the grounds of exception read as
follows:
6
"(a) The facts pleaded and grounds advanced by Plaintiff are insufficient to
support the existence of the alleged legal duty to Plaintiff;
(b) Plaintiff relies merely on the alleged breach by Police Officers of a
duty to investigate a crime, which breach
simpliciter
cannot in law give
rise to the claim instituted against Defendant;
(c) In law, and as a matter of public policy, a potential civil litigant
cannot and should not be permitted to hold Police Officers
responsible or liable
for failing to collect or preserve evidence which may be useful or necessary for
the purposes of civil litigation,
given
inter alia
that the functions of
the South African Police are limited to the functions listed in section 5 of the
Police Act, No. 7 of 1958,"
In considering
whether the facts pleaded are sufficient to support the existence of a legal
duty owed to the plaintiff it must be
borne in mind that it is for the defendant
to satisfy the Court that the conclusion of law for which the plaintiff
contends, cannot
be supported upon every interpretation which the particulars of
claim can reasonably bear (cf
Lewis v Oneanate (Pty) Ltd and Another
1992
(4) SA811 (A) at 817 F-G). There is, moreover, a further hurdle which he has to
cross.
As the judgments in the cases referred to earlier
demonstrate,
7
conclusions as to the existence of a legal duty in cases for which there
is no precedent entail policy decisions and value judgments
which "shape and, at
times, refashion the common law [and] must reflect the wishes, often unspoken,
and the perceptions, often dimly
discerned, of the people" (per M M Corbett in a
lecture reported sv
The Role of Policy in the Evolution of the Common Law
in 1987 SALJ at 67). What is in effect required, is that, not merely the
interests of the parties
inter se
, but also the conflicting interests of
the community be carefully weighed and that a balance be struck in accordance
with what the
Court conceives to be society's notions of what justice demands.
(Corbett
supra
at 68; J C van der Walt: "
Duty of care": Tendense in
die Suid-Afrikaanse en Engelse regspraak
1993 THRHR at 563 -564.) Decisions
like these can seldom be taken on a mere handful of allegations in a pleading
which only reflects
the facts on which one of the contending parties relies. In
the passage cited earlier Fleming rightly stressed the interplay of many
factors
which have to be considered. It is impossible to arrive at a conclusion except
upon a consideration of all the circumstances
8
of the case and of every other relevant factor. This would seem to
indicate that the present matter should rather go to trial and
not be disposed
of on exception. On the other hand, it must be assumed - since the plaintiff
will be debarred from presenting a stronger
case to the trial Court than the one
pleaded - that the facts alleged in support of the alleged legal duty represent
the high-water
mark of the factual basis on which the Court will be required to
decide the question. Therefore, if those facts do not
prima facie
support
the legal duty contended for, there is no reason why the exception should not
succeed. (Cf
Indac Electronics (Pty) Ltd v Volkskas Bank Ltd supra
at 801
A-D.) It remains however for the defendant to persuade us on this
score.
The Court a quo (at 739 F-l of the reported judgment) rightly concluded
that the assignment of the duty to investigate any offence
or alleged offence to
the South African Police in terms of sec 5 of the Police Act 7 of 1958 does not
per se
impose upon members of the force the legal duty contended for. In
the
Ewels
case (at 596 E) the Court regarded the existence of the
statutory duty to prevent crime as one of the factors to be taken into account
and
9
eventually (at 597 F-H) attached considerable weight to it in view of the
fact
that the plaintiff in that case was assaulted by a policeman in
a police station and indeed in the presence of other policemen on
duty there who
did nothing to prevent the attack while easily able to do so. In the present
case the existence of the statutory duty
to investigate is also a relevant
consideration but, for reasons which will presently emerge, it cannot carry the
same weight. What
weighed heavily with the Court
a quo
(as appears from
739 l -740 F) was its perception that the community have come to expect that
policemen perform a variety of non-statutory
duties which they have taken upon
themselves in seeking to promote public order and stability, particularly the
self-imposed duties
which they are accustomed to perform in connection with road
accidents. According to the judgment at 740 E-F
"[the] acts of police on accident scenes ... have created a reliance from
which the defendant cannot escape by saying (even if it
were true) that so much
of what has been done in the past has been done
extra-statutorily;"
10
and at 740 l-J
"[if] the community would be so offended by a policeman's failure to live up
to its expectations (which are based partly on statute
and partly on what people
see policemen doing every day) that it would demand compensation for a victim
who suffered a loss because
of such failure, then the policeman is
liable."
These remarks leave one with the firm
impression that the Court a quo based a duty to record information relating to
an "offending
vehicle" (743 H-l) and its driver largely on conduct of the police
in the past. That a legal duty to act positively in order to avoid
harm to
another may arise from a party's prior conduct cannot be doubted. But, where
specific prior conduct is invoked in support
of the existence of a legal duty,
such conduct must obviously be properly pleaded. In the present one there is no
indication in the
particulars of claim that the plaintiff is relying on any
prior act - be it on the part of the policemen concerned or any other member
of
the police force. Moreover, none of the voluntary duties listed in the judgement
relates to the collection of
11
evidence.
But, even if the prior conduct mentioned in the judgment were to be taken
into account, I do not share the Court
a quo
's view of the degree of
public indignation which would be aroused by a failure on the part of a
policeman to perform one of the many
tasks undertaken in connection with road
accidents. Society would surely not condemn all omissions equally harshly and
would not
eg regard a failure to summon a tow truck in the same light as a
failure to summon an ambulance or to render assistance to a victim
trapped in
the wreckage (to mention only some of the many examples used in the judgment).
Moreover, in gauging the depth of popular
disapproval of any particular
omission, one should constantly bear in mind that the age-old problem of the
distinction between morally
reprehensible and legally actionable omissions is a
lasting one which has not been solved by the mere recognition of societal
attitudes
and public and legal policy as determinants of the existence of a
legal duty to prevent economic loss to others. It needs to be emphasized
that
such a duty arises, as appears from the
dictum
in the Ewels
12
case cited earlier, when the circumstances are such, not only that the
omission evokes moral indignation, but also that the legal
convictions of the
community demand that it be regarded as wrongful and that the loss should be
compensated by the person who failed
to act positively. And, whilst I have
little doubt that the community will morally condemn almost every dereliction of
duty by a
policeman, I think it may be stated with equal certainty that
society's legal convictions do not demand every omission to be branded
as
wrongful and in effect that retribution be exacted from the wrongdoer by holding
him personally liable for loss suffered.
Bearing this in mind I turn
to examine the circumstances of the present case.
A resume of the salient facts actually pleaded is that two constables
arrived on the scene where the plaintiff had been injured shortly
after the
incident. While they were conducting an investigation (the nature of which is
not disclosed) the offending driver returned
to the scene in the vehicle from
which the bundle had fallen. A witness to the incident informed the
policemen
13
of the circumstances under which it had occurred and that the vehicle
constituted a danger to other users of the road. They failed
however to record
its registration number or the identity of its driver. Had they done so the
vehicle would have been identified
and the plaintiff would have been able to
claim compensation from the Fund. By virtue of the fact that they knew that the
plaintiff
had been seriously injured and that the incident was caused solely by
the wrongful conduct of the driver of the unknown vehicle,
the policemen should
reasonably have foreseen that a failure to properly investigate the collision
could and would cause the plaintiff
to suffer damage.
Although I am
by no means convinced of the correctness of such inferences I am prepared to
infer from the facts pleaded, as plaintiff's
counsel requested us to do, that
the driver of the unknown vehicle returned to the scene while the policemen were
present and that
they received the information referred to from the witness at
that stage. I am also prepared to infer that the plaintiff - on account
of his
injuries - was unable himself to identify either the driver or the
vehicle.
14
Conspicuously lacking is a positive averment of negligence on the part of
the policemen. All that is in effect alleged, is that they
should reasonably
have foreseen that the plaintiff could and would have suffered damage on account
of their failure to conduct a
proper Investigation. Viewed merely as a matter of
pleading negligence, these allegations may perhaps pass muster; whether they do
or not is of no consequence. What is of importance is that, in relation to
negligence, no further omissions are averred. The result
is that the only
omission relied on is the failure to
record
(par 12) the registration
number and the identity of the driver of the vehicle, which constituted
noncompliance with what is alleged
in par 11 to be a legal duty "to
take
down
the necessary information relating to the driver and the identity of
the said vehicle".
This being the nature of the omission on which the plaintiff relies,
there is a vast difference between the
Ewels
case and the present one.
Ewels's complaint against the Minister of Police was that he was assaulted, as
mentioned earlier, by a
policeman in a police station in the presence of
other
15
policemen who did nothing to prevent or stop the attack. The latters'
omission related directly to their statutory duty under sec
5 (d) of the Police
Act in connection with the prevention of crime and, as Rumpff CJ said at 597
G-H,
"[wat] misdaad betref, is die polisieman nie net afskrikker of
opspoorder
nie, maar ook beskermer." The lack of concern
of the police witnesses to the assault and their failure to act were moreover so
shocking
that the highest degree of popular indignation would undoubtedly be
aroused.
Compared to that, the omission in the present case pales into
insignificance despite its consequences to the plaintiff. The complaint
is not
that the policemen failed to investigate the incident (in par 9 it is actually
alleged that they were doing so when the vehicle
returned) or to gather
information about the offending driver and his vehicle: their only shortcoming
was that they neglected to
record it. Plaintiff's counsel argued that they
should have conducted a proper investigation into an alleged traffic offence
committed
by the driver, but, assuming that they did not properly perform their
duty to
16
investigate crimes in terms of the Police Act by failing to record
relevant information, their omission did not constitute a breach
of a duty owed
under the Act to the plaintiff. The police force is first and foremost an agency
employed by the State for the maintenance
of law and order and the prevention,
detection and investigation of crime with a view to bringing criminals to
justice. In the course
of the performance of their duties in this regard its
members often collect information relevant to the issues in civil proceedings.
But the aim of their investigations is obviously not to provide the parties to
such proceedings with useful information; nor does
a prospective litigant have
the right to demand a police investigation for the sole purpose of providing him
with evidence. The fact
of the matter is simply that, whereas parties or
prospective parties to civil litigation often make use of information gathered
by
the police, they must make do with whatever the police have available and
cannot insist on anything better.
Can it in these circumstances be said that the policemen owed the
plaintiff a legal duty to record the information relating to the
identity of
the
17
driver or his vehicle? In my view not. Viewing the matter objectively
society will take account of the fact that the functions of
the police relate in
terms of the Act to criminal matters and were not designed for the purpose of
assisting civil litigants. Members
of the community will realize that services
are rendered by the police in connection with road accidents in the course of
what was
described in
Pease v Minister of Justice
1962 (3) SA 215
(T) at
218 B-C as "exceptional duties falling outside the meaning of the term 'Police
duties' as ordinarily understood," and that
these duties, largely self-imposed,
may well be terminated or curtailed if the Courts penalise less than perfect
performance. Bearing
this in mind society will baulk at the idea of holding
policemen personally liable for damages arising from what was a relatively
insignificant dereliction of duty.
In my view the facts alleged in
the particulars of claim do not
prima facie
support the existence of a
legal duty towards the plaintiff. The exception should have been
allowed.
The appeal accordingly succeeds and the respondent is ordered to
pay
18
the appellant's costs, including the costs of two counsel. The order of
the
Court
a quo
is altered to read:
"The exception is upheld with costs. The plaintiff's particulars of claim
are set aside and the plaintiff is given leave, if so advised,
to file amended
particulars of claim within one month."
J
J F HEFER JUDGE OF APPEAL
NESTADT, JA )
NIENABER, JA )
) AGREE VAN DEN HEEVER, JA )
HARMS, JA )