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[2002] ZASCA 79
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Minister of Safety and Security v Van Duivenboden (209/2001) [2002] ZASCA 79; [2002] 3 All SA 741 (SCA); 2002 (6) SA 431 (SCA) (22 August 2002)

THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
CASE
NO
: 209/2001
In
the matter between :
MINISTER OF SAFETY AND
SECURITY
Appellant
and
DIRK VAN DUIVENBODEN
Respondent
___________________________________________________________________________
Before: Howie, Marais, Nugent JJA, Heher & Lewis
AJJA
Heard: 17 MAY 2002
Delivered:
22
AUGUST 2002
Summary: Delict – police – liability for
omissions - failing to take steps to deprive a person of firearms.
___________________________________________________________________________
J U D G M E N T
___________________________________________________________________________
NUGENT JA:
[1]
Neil Brooks, who lived in
Bothasig on the Cape peninsula with his wife, Dawn, and their two
children, Nicole and Aaron, was fond
of firearms. He owned a 9mm
pistol and .38 revolver, both of which he was licensed to possess in
terms of s 3(1) of the Arms and
Ammunition Act 75 of 1969. Brooks
was also fond of alcohol, which he habitually consumed in excess.
When under its influence
he was inclined to become aggressive and to
abuse his family. On 21 October 1995 these various aspects of his
life combined into
tragedy. During the late afternoon, after Brooks
had been drinking at the family home, a domestic squabble erupted.
Brooks loaded
both his firearms, placed a holster and more ammunition
around his waist, and confronted Dawn, who was then in the garage
with
the children. Brooks pointed the cocked pistol at her, but she
repeatedly pushed it away, and then he shot her. Although she
was
injured Dawn managed to escape from the garage with Aaron and they
sought refuge across the road on the property of the respondent.

Brooks then turned on eleven year old Nicole, who remained trapped in
the garage, and he shot and killed her before following
after Dawn.
Meanwhile Aaron, who was in possession of Dawn’s revolver, had
called on the respondent for assistance and had
handed to him the
revolver. The respondent and his father went into the street to
investigate, where they encountered Brooks who
began firing at them,
and at other neighbours who had come to investigate, with both
firearms. A bullet struck the respondent
in the ankle as he
attempted to flee and he collapsed on the ground. Brooks found Dawn
hiding in the respondent’s garage
and he shot her repeatedly
until she was dead. He then returned to where the respondent had
collapsed and shot him in the shoulder
before the respondent managed
to ward him off by firing with Dawn’s revolver. Ultimately the
police arrived and Brooks was
arrested. He is now serving a long
term of imprisonment for the crimes he committed that day.
[2]
No doubt the respondent’s
grievance lies primarily against Brooks but he chose instead to sue
the state, represented by the
appellant, for recovery of the damages
that he sustained as a result of his injuries. The basis of his
claim, put simply, is that
the police were negligent in failing to
take the steps that were available in law to deprive Brooks of his
firearms before the
tragedy occurred, notwithstanding that there were
grounds for doing so, and that their negligence was a cause of the
respondent
being shot. The action was tried in the High Court at
Cape Town before Desai J who ordered, by agreement, that the question
of
liability should be decided separately from the question of
damages. At the conclusion of the trial on that issue the
respondent’s
claim was dismissed with costs but on appeal to
the Full Court that decision was reversed (Davis and Louw JJ, Moosa J
dissenting).
This further appeal comes before us with the special
leave of this Court.
[3]
The police have the
power, in certain circumstances, to deprive a person of firearms.
That power is conferred upon the Commissioner
of Police by s 11 of
the Act and has been delegated by the Commissioner to other senior
police officers. Because of the centrality
of s 11 to the issues
that arise in this appeal it is worth setting out its terms in full.
With effect from 18 September 1992
(when the Arms and Ammunition Acts
Amendment Act 117 of 1992 came into effect) the section provided as
follows:
(1) 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,
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.
(2) (a) The Commissioner may, if he has reason to
believe that the person to whom the said notice has been addressed,
has an arm
in his possession, issue a warrant for the search and
seizure thereof.
The provisions of section 21 (2), (3) and (4) of the
Criminal Procedure Act, 1977 (Act 51 of 1977), shall
mutatis
mutandis
apply to a warrant issued under
paragraph (a), and any arm seized in pursuance of such a warrant
shall be handed over to the holder
of an office in the South African
Police as the Commissioner may designate.
(3) Any person appearing in pursuance of a notice issued
under subsection (1) shall be entitled-
(a) to be represented by an advocate or an attorney;
(b) to request the Commissioner to call, in the manner
referred to in subsection (1), upon any person who made a statement
referred
to in that subsection, also to appear before the
Commissioner;
(c) to examine the person who has been called upon in
terms of paragraph (b) to appear, under oath or affirmation taken by
the Commissioner,
or cause him to be so examined through any such
advocate or attorney, to such extent as the Commissioner with a view
to a fair
and just investigation may allow.
(4) Upon proof that the notice referred to in subsection
(1) was duly delivered or tendered to the person to whom it was
addressed,
the Commissioner may at any time subsequent to the time
specified in the notice, whether or not such person complies with the
notice,
declare such person to be unfit to possess any arm at any
time or during a specified period of not less than two years, if the
Commissioner, having regard to-
(a) any reasons, submissions or evidence advanced under
oath by or on behalf of the said person; and
(b) any other sworn information or evidence at his
disposal,
is satisfied that such person is a person contemplated
in paragraph (b), (c) or (d) of subsection (1).
(5) ......
(5A) The Commissioner may in his discretion suspend the
operation of the declaration referred to in subsection (4) for a
period
not exceeding two years on any condition which the
Commissioner may deem fit.
(6) The Commissioner shall by notice in writing sent by
post or delivered to him inform any person in respect of whom a
declaration
has been made under subsection (4), of the tenor of and
reason for the declaration.
[4]
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.
.
[5]
The
first incident occurred some years earlier at the premises of a
business that Brooks and Dawn operated in Mowbray. Brooks
was under
the influence of alcohol when a heated argument took place. Brooks
drew his pistol and started approaching Dawn but
desisted from doing
anything further when she produced her own revolver from her purse.
Dawn summoned the police and two officers
from Mowbray police station
arrived. The police officers confiscated both the firearms but
allowed Brooks and Dawn to retrieve
them the following day.
[6]
The
second incident occurred at the family home in Bothasig on 27
September 1994. During the course of the early evening Cecil
Connor,
the father of Dawn, received a distressed telephone call from his
daughter. She reported to Connor that she and the children
had fled
to the house of a friend because Brooks had threatened to kill them.
Connor went to investigate and found that Brooks
had locked himself
inside the house whereupon Connors left and telephoned the police. A
reservist from the Milnerton police station
responded to the call by
going to the house in the company of a colleague. He approached the
house and found a note propped against
a window in which Brooks
expressed the intention of taking his own life. Propped against
another window was another note in which
Brooks warned that he had
firearms and ammunition and would shoot anyone who approached the
house, including the police. When
the reservist rapped on the window
and called out he heard a firearm being cocked within the house. He
identified himself as a
police officer whereupon Brooks called out
that unless the reservist removed himself Brooks would shoot him.
The reservist returned
to the police vehicle and radioed for
assistance and a more senior police officer arrived. After being
told what had occurred
she called in the assistance of a specialist
team of police officers who were trained to defuse such situations
and members of
that team arrived. Amongst them was Superintendent
Hefer. Members of the Internal Stability Unit also arrived and
ultimately
there must have been a dozen or so police officers on the
scene.
[7]
Meanwhile Connor and Dawn
had returned and they approached the house in the company of a number
of police officers. As they approached
the bedroom window Brooks
shouted from inside that he would shoot anyone who attempted to enter
the house and they withdrew. In
the course of the evening Hefer
spoke to Dawn, who told Hefer that Brooks should not be in possession
of firearms. Hefer explained
the procedure envisaged by s 11 of the
Act and offered to take a statement from Dawn to initiate an enquiry.
Dawn declined to
provide a statement just then but said that she
would do so the following day. Ultimately Dawn and her father left
and at about
midnight the police also left, apparently in the belief
that by then Brooks had fallen asleep and no longer posed a threat.
[8]
Connor and Dawn returned
to the house the following day where they encountered two police
officers talking to a contrite Brooks.
The house was in a shambles –
some of the contents were smashed and clothes were strewn around the
house – and at
least twenty boxes of ammunition were lined up
along the wall of the passage between the lounge and the main
bedroom. One of
the police officers warned Brooks that if he
molested his family in any way he would lock Brooks up and the police
officers left.
Later that day Dawn and Aaron went to the offices of
the Child Protection Unit where they deposed to affidavits in support
of
a charge against Brooks for assaulting Aaron the previous evening.
They alleged that Brooks, in a drunken state, had assaulted
Aaron
before taking out a hunting knife with which he carved up his jacket.
Dawn alleged that Brooks then charged at her with
the knife,
threatening to kill her and the children. Three days later Dawn
deposed to an affidavit in which she purported to ‘withdraw
all
charges as well as all allegations made by me and my son’
because, so she said, her family life was starting to fall
apart and
she hoped that by withdrawing the allegations she might save her
marriage. She added that it was ‘the first time
something like
this had happened’ and that she didn’t think it would
happen again as ‘my husband really shows
regret.’
[9]
Some time after that
incident (the precise date is unknown) Dawn telephoned Sergeant
Goldie, who administered matters relating
to firearms at the
Milnerton police station, and to whom she had been referred by Hefer.
Dawn told Goldie that she had a problem
with her husband’s
drinking and she asked what could be done about it. Goldie told her
that he could do nothing about that
but he asked her whether her
husband had firearms and when she replied in the affirmative Goldie
told her that if she felt threatened
she should make a sworn
statement and an enquiry would be held in terms of s 11 of the Act.
Goldie said that Dawn’s reaction
was defensive and that she
told him that she would resolve the matter herself.
[10]
Dawn approached the
police on a further occasion (again the date is unknown: it might
even have been before September 1994 ) when
she spoke to Sergeant
Roos at the Bothasig Police station. She was in an emotional state
and said that she was afraid of her husband
because he was
threatening to kill the family and she asked whether there was a
means by which the police could deprive him of
his firearms. Roos
was not aware of the relevant procedures and he referred her to
Warrant Officer Jenkins who was then in command
of the police
station. Jenkins told Dawn that she would need to prefer a charge
against Brooks and that unless she did so the
hands of the police
were tied. Dawn told Jenkins that she was unwilling to prefer
charges because to do so would jeopardize her
marriage and there the
matter was left.
[11]
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.
There was no proper explanation in the evidence for why
that was never done. Hefer said that she did not do so because her
knowledge
of the threats that were made by Brooks was only hearsay.
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. Why that was not done, and why none of those
police officers took any steps themselves to initiate an enquiry,
was
not explained. It is that omission that lies at the heart of the
respondent’s claim.
[12]
Negligence,
as it is understood in our law, is not inherently unlawful – it
is unlawful, and thus actionable, only if it
occurs in circumstances
that the law recognizes as making it unlawful.
1
Where the negligence manifests itself in a positive act that causes
physical harm it is presumed to be unlawful,
2
but that is not so in the case of a negligent omission. 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.
3
It is important to keep that concept quite separate from the
concept of fault. 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 as determined by the application of the separate test
that has consistently been applied by this court
in
Kruger
v Coetzee,
4
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. While the enquiry as to the
existence or otherwise of a legal duty might be conceptually anterior
to the question
of fault (for the very enquiry is whether fault is
capable of being legally recognised),
5
nevertheless, in order to avoid conflating these two separate
elements of liability it might often be helpful to assume that the

omission was negligent when asking whether, as a matter of legal
policy, the omission ought to be actionable.
6
[13]
In
Minister
van Polisie v Ewels
7
it was held by this Court that a negligent
omission will be regarded as unlawful conduct 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. Subsequent decisions
have reiterated that the enquiry in that regard is a broad one in

which all the relevant circumstances must be brought to account.
8
In
Knop v Johannesburg City Council
9
Botha JA said that the following well-known
passage from Fleming
The Law of Torts
4
th
ed at 136 correctly set out the general nature of the enquiry:
“
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.’
[14]
English law, in which
the concept of the duty of care embraces the element of unlawfulness,
approaches the problem in a similarly
broad manner. In
Anns
and Others v London Borough of Merton
10
Lord Wilberforce attempted to formulate a coherent principle that
could be applied to new cases when he said the following:
‘
Through the trilogy of cases in this House –
Donoghue v Stevenson
[1931] UKHL 3
;
[1932]
A.C. 562
,
Hedley Byrne & Co. Ltd. V Heller
&Partners Ltd.
[1963] UKHL 4
;
[1964] A.C. 465
, and
Dorset Yacht Co. Ltd. v Home Office
[1970]
A.C. 1004
, the position has now been reached that in order to
establish that a duty of care arises in a particular situation, it is
not necessary
to bring the facts of that situation within those of
previous situations in which a duty of care has been held to exist.
Rather
the question has to be approached in two stages. First one
has to ask whether, as between the alleged wrongdoer and the person

who has suffered damage there is a sufficient relationship of
proximity or neighbourhood such that, in the reasonable contemplation

of the former, carelessness on his part may be likely to cause damage
to the latter - in which case a prima facie duty of care
arises.
Secondly, if the first question is answered affirmatively, it is
necessary to consider whether there are any considerations
which
ought to negative, or to reduce or limit the scope of the duty or the
class of person to whom it is owed or the damages to
which a breach
of it may give rise: see
Dorset Yacht
case
[1970] A.C. 1004
per
Lord
Reid at p.1027.’
‘
Translated into the analytical form that is adopted in
our law the effect of that test is that negligent conduct will be
unlawful
unless there are considerations that militate against it.
That approach evoked criticism in Australia,
11
and in subsequent cases in the House of Lords which retreated to a
casuistic approach in
Caparo Industries plc v
Dickman and Others,
12
in which Lord Bridge of Harwich said the
following:
13
‘
But since the
Anns
case
a series of decisions of the Privy Council and of your Lordships’
House, notably in judgments and speeches delivered
by Lord Keith of
Kinkel, have emphasized the inability of any single general principle
to provide a practical test which can be
applied to every situation
to determine whether a duty of care is owed and, if so, what is its
scope: see
Governors of Peabody Donation Fund
v. Sir Lindsay Parkinson & Co. Ltd.
[1985]
A.C. 210
,239F-241C;
Yuen Kun Yeu v. Attorney-
General of Hong Kong
[1988] A.C. 175
,
190E-194F;
Rowling v. Takaro Properties Ltd.
[1988] A.C. 473
, 501D-G;
Hill
v. Chief Constable of West Yorkshire
[1989]
A.C. 53
, 60B-D. What emerges is that, in addition to the
foreseeability of damage, necessary ingredients in any situation
giving rise
to a duty of care are that there should exist between the
party owing the duty and the party to whom it is owed a relationship
characterised by law as one of “proximity” or
“neighbourhood” and that the situation should be one in
which
the court considers it fair, just and reasonable that the law
should impose a duty of a given scope upon the party for the benefit

of the other. But it is implicit in the passages referred to that
the concepts of proximity and fairness embodied in these additional

ingredients are not susceptible of any precise definition as would be
necessary to give them utility as practical tests, but amount
in
effect to little more than convenient labels to attach to the
features of different specific situations which, on a detailed

examination of all the circumstances, the law recognizes
pragmatically as giving rise to a duty of care of a given scope.
Whilst
recognising, of course, the importance of underlying general
principles common to the whole field of negligence, I think the law

has now moved in the direction of attaching greater significance to
the more traditional categorization of distinct and recognisable

situations as guides to the existence of, the scope and the limits of
the varied duties of care which the law imposes.’
[15]
In New Zealand the
courts have continued upon the course that was set by the decision in
Anns
14
but it is significant that, even after
Anns
was expressly overruled the Privy Council
endorsed the primacy of parochial norms in this field of the law.
15
In Canada the law has similarly continued to develop in accordance
with the principles laid down in
Anns
16
following the adoption of those principles by the Supreme Court in
City of Kamloops v. Nielsen et al
17
and
Just v The Queen
in right of British Columbia.
18
[16]
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.
[17]
In applying the test
that was formulated in
Minister van Polisie v
Ewels
the ‘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. The Constitution is the supreme law, and no norms or
values that are inconsistent
with it can have legal validity - which
has the effect of making the Constitution a system of objective,
normative values for legal
purposes. In
Carmichele
v Minister of Safety and Security and Another (Centre for Applied
Legal Studies Intervening)
19
our Constitution was likened to the German
Constitution, of which the German Federal Constitutional Court said
the following:
‘
The
jurisprudence of the Federal Constitutional Court is consistently to
the effect that the basic right norms contain not only
defensive
subjective rights for the individual but embody at the same time an
objective value system which, as a fundamental constitutional
value
for all areas of the law, acts as a guiding principle and stimulus
for the Legislature, Executive and Judiciary.’
[18]
Although the events with
which this case is concerned took place before the 1996 Constitution
came into effect, it was pointed
out in
Carmichele
20
that when seized of a matter after that date courts are obliged to
have regard to the provisions of s 39(2) when developing the
common
law. The principles embodied in the Constitution are in any event
founded upon and consistent with the provisions and
the
constitutional principles that were embodied in the interim
Constitution.
21
[19]
The reluctance to impose
liability for omissions is often informed by a
laissez
faire
concept of liberty that recognizes that
individuals are entitled to ‘mind their own business’
even when they might reasonably
be expected to avert harm,
22
and by the inequality of imposing liability on one person who fails
to act when there are others who might equally be faulted.
23
The protection that is afforded by the Bill of Rights to equality,
24
and to personal freedom,
25
and to privacy,
26
might now bolster that inhibition against imposing legal duties on
private citizens. However, those barriers are less formidable
where
the conduct of a public authority or a public functionary is in
issue, for it is usually the very business of a public authority
or
functionary to serve the interests of others, and its duty to do so
will differentiate it from others who similarly fail to
act to avert
harm. The imposition of legal duties on public authorities and
functionaries is inhibited instead by the perceived
utility of
permitting them the freedom to provide public services without the
chilling effect of the threat of litigation if they
happen to act
negligently
27
and the spectre of limitless liability.
28
That last consideration ought not to be unduly exaggerated, however,
bearing in mind that the requirements for establishing negligence,
29
and a legally causative link,
30
provide considerable practical scope for harnessing liability within
acceptable bounds.
[20
But while the utility of
allowing public authorities the freedom to conduct their affairs
without the threat of actions for negligence
in the interest of
enhancing effective government, ought not to be overlooked, it must
also be kept in mind that in the constitutional
dispensation of this
country the state (acting through its appointed officials) is not
always free to remain passive. The state
is obliged by the terms of
s 7 of the 1996 Constitution not only to respect but also to
‘protect, promote and fulfill the
rights in the Bill of Rights’
and s 2 demands that the obligations imposed by the Constitution must
be fulfilled. As pointed
out in
Carmichele,
31
our Constitution points in the opposite
direction to the due process clause of the United States
Constitution, which was held in
De Shaney v
Winnibago County Department of Social Services
32
not to impose affirmative duties upon the
state.
33
While private citizens might be entitled to remain passive when the
constitutional rights of other citizens are under threat,
34
and while there might be no similar constitutional imperatives in
other jurisdictions, in this country the state has a positive

constitutional duty to act in the protection of the rights in the
Bill of Rights. The very existence of that duty necessarily
implies
accountability and s 41(1) furthermore provides expressly that all
spheres of government and all organs of state within
such sphere must
provide government that is not only effective, transparent and
coherent, but also government that is accountable
(which was one of
the principles that was drawn from the Interim Constitution). In
Olitzki Property Holdings v State Tender Board
and Another
35
Cameron JA said the following:
‘
The principle of public accountability is central
to our new constitutional culture, and there can be no doubt that the
accord of
civil remedies securing its observance will often play a
central part in realizing our constitutional vision of open,
uncorrupt
and responsive government.’
[21]
When determining whether
the law should recognize the existence of a legal duty in any
particular circumstances what is called
for is not an intuitive
reaction to a collection of arbitrary factors but rather a balancing
against one another of identifiable
norms. Where the conduct of the
state, as represented by the persons who perform functions on its
behalf, is in conflict with
its constitutional duty to protect rights
in the Bill of Rights in my view the norm of accountability must
necessarily assume an
important role in determining whether a legal
duty ought to be recognized in any particular case. The norm of
accountability,
however, need not always translate constitutional
duties into private law duties enforceable by an action for damages,
for there
will be cases in which other appropriate remedies are
available for holding the state to account. Where the conduct in
issue relates
to questions of state policy, or where it affects a
broad and indeterminate segment of society, constitutional
accountability might
at times be appropriately secured through the
political process, or through one of the variety of other remedies
that the courts
are capable of granting.
36
No doubt it is for considerations of this nature that the Canadian
jurisprudence in this field differentiates between matters
of policy
and matters that fall within what is called the ‘operational’
sphere of government
37
though the distinction is not always clear. There are also cases in
which non-judicial remedies,
38
or remedies by way of review and
mandamus
or
interdict, allow for accountability in an appropriate form
39
and that might also provide proper grounds upon which to deny an
action for damages. However where the state’s failure
occurs
in circumstances that offer no effective remedy other than an action
for damages the norm of accountability will, in my
view, ordinarily
demand the recognition of a legal duty unless there are other
considerations affecting the public interest that
outweigh that norm.
For as pointed out by Ackermann J in
Fose v
Minister of Safety and Security
40
in relation to the Interim Constitution (but
it applies equally to the 1996 Constitution):
“…
without effective remedies for breach [of rights
entrenched in the Constitution], the values underlying and the right
entrenched
in the Constitution cannot properly be upheld or enhanced.
Particularly in a country where so few have the means to enforce
their
rights through the courts, it is essential that on those
occasions when the legal process does establish that an infringement
of
an entrenched right has occurred, it be effectively vindicated.
The courts have a particular responsibility in this regard and
are
obliged to ‘forge new tools’ and shape innovative
remedies, if needs be, to achieve that goal.”
[22]
Where there is a
potential threat of the kind that is now in issue the
constitutionally protected rights to human dignity,
41
to life,
42
and to security of the person,
43
are all placed in peril and the state, represented by its officials,
has a constitutional duty to protect them. It might be that
in some
cases the need for effective government, or some other constitutional
norm or consideration of public policy, will outweigh
accountability
in the process of balancing the various interests that are to be
taken into account in determining whether an action
should be
allowed, as there were found to be in
Knop v
Johannesburg City Council,
44
and in
Hill v Chief Constable of Yorkshire,
45
but I can see none that do so in the present circumstances. We are
not concerned in this case with the duties of the police generally
in
the investigation of crime. I accept (without deciding) that there
might be particular aspects of police activity in respect
of which
the public interest is best served by denying an action for
negligence,
46
but it does not follow that an action should be denied where those
considerations do not arise. In this case we are concerned
only
with whether police officers who, in the exercise of duties on behalf
of the state, are in possession of information that
reflects upon the
fitness of a person to possess firearms are under an actionable duty
to members of the public to take reasonable
steps to act on that
information in order to avoid harm occurring. There was no
suggestion by the appellant that the recognition
of a legal duty in
such circumstances would have the potential to disrupt the efficient
functioning of the police, or would necessarily
require the provision
of additional resources, and I see no reason why it should otherwise
impede the efficient functioning of
the police – on the
contrary the evidence in the present case suggests that it would only
enhance it. There is no effective
way to hold the state to account
in the present case other than by way of an action for damages, and
in the absence of any norm
or consideration of public policy that
outweighs it the constitutional norm of accountability requires that
a legal duty be recognised.
The negligent conduct of police officers
in those circumstances is thus actionable and the state is
vicariously liable for the
consequences of any such negligence. The
next question, then, is whether the police officers concerned were
negligent.
[23]
The classic test for
negligence as set out in
Kruger v Coetzee
47
has since been quoted with approval in
countless decisions of this Court: whether a person is required to
act at all so as to avoid
reasonably foreseeable harm, and if so what
that person is required to do, will depend upon what can reasonably
be expected in
the circumstances of the particular case. That
enquiry offers considerable scope for ensuring that undue demands are
not placed
upon public authorities and functionaries for the extent
of their resources and the manner in which they have ordered their
priorities
will necessarily be taken into account in determining
whether they acted reasonably. In the present case it was reasonably
foreseeable
that harm might ensue if Brooks’s fitness to be in
possession of firearms was not enquired into in terms of s 11 and in
my
view a reasonable police officer would have taken the initiative
to cause such an enquiry to be held. The police officers who
had
knowledge of what had ocurred on 27 September 1994 were thus clearly
called upon to do so and in the absence of an explanation
their
failure to do so was negligent.
[24]
What remains to be
considered is whether that negligence was a cause of the respondent
being shot. In
International Shipping Co
(Pty) Ltd v Bentley
48
it was pointed out by Corbett JA that
causation involves two distinct enquiries. The first enquiry is
whether the wrongful conduct
was a factual cause of the loss. The
second is whether in law it ought to be regarded as a cause.
Regarding the first enquiry
he said the following:
‘
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 loss;
aliter,
if it would not have ensued.”
[25]
There are conceptual
hurdles to be crossed when reasoning along those lines for once the
conduct that actually occurred is mentally
eliminated and replaced by
hypothetical conduct questions will immediately arise as to the
extent to which consequential events
would have been influenced by
the changed circumstances. Inherent in that form of reasoning is
thus considerable scope for speculation
which can only broaden as the
distance between the wrongful conduct and its alleged effect
increases. No doubt a stage will be
reached at which the distance
between cause and effect is so great that the connection will become
altogether too tenuous but in
my view that should not be permitted to
be unduly exaggerated. A plaintiff is not required to establish the
causal link with certainty
but only to establish that the wrongful
conduct was probably a cause of the loss, which calls for a sensible
retrospective analysis
of what would probably have occurred, based
upon the evidence and what can be expected to occur in the ordinary
course of human
affairs rather than an exercise in metaphysics.
[26]
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.
[27]
I am mindful of the fact
that even a discretion that has been rationally exercised might
produce varying results but in my view
it is nevertheless probable
that the declaration of unfitness would not have been suspended in
the circumstances of the present
case. 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, and least of all to
enable them to shoot the police, nor do firearms belong in the hands
of drunks. I
have little doubt that responsible police officers
share that view and I can see no grounds upon which Brooks would have
been permitted
to remain in possession of firearms when he had made
threats of that nature and in the circumstances in which he did. It
was submitted,
however, that that presents only one side of the
picture and that Brooks might have been able to advance other
mitigating facts.
There is no evidence to suggest what those
mitigating facts might have been and I see no reason why we should
speculate in the
absence of any evidence advanced by the appellant in
that regard. Moreover such evidence as there is suggests that any
enquiry
into Brooks’s background and predisposition would only
have exacerbated his position. It would have revealed that he was
an
habitual drunk who became aggressive when under the influence of
alcohol and assaulted his family, that on one occasion he had

threatened to kill his family with a hunting knife, that on an
earlier occasion he had drawn his firearm to intimidate his wife
in
the course of a domestic squabble, and that his wife lived in fear of
the firearms that were in his possession. I can thus
see no grounds
on the evidence why the enquiring officer might have exercised his
discretion in favour of Brooks. But there is
a further, and in my
view decisive, reason for concluding that the declaration would not
have been suspended. Standing instructions
as to the manner in which
such enquiries were to be conducted on behalf of the Commissioner
dealt specifically with the manner
in which s 11(5A) was to be
applied. The relevant instruction provided expressly, and with
emphasis added, that the suspension
of a declaration was not
appropriate where the possession of a firearm posed a potential
danger for other persons, which was clearly
so in this case.
[28]
It was submitted that
even if Brooks had been declared unfit to possess firearms the
respondent might nevertheless have been shot
because Brooks might
have acquired possession of a firearm unlawfully, or he might have
taken possession of Dawn’s revolver
on the day in question.
That is indeed possible but it is likely that neither of those
possibilities would have occurred. Brooks
was a person who was
accustomed to carry both his firearms openly and there is nothing to
suggest that he was of the disposition
to possess a firearm
unlawfully and secretly. It is also unlikely that he could have
done so without the knowledge of his wife
and even more unlikely that
she would have co-operated by remaining discreet. As to the
suggestion that Brooks might have acquired
possession of Dawn’s
revolver, with the result that the respondent might have been shot in
any event, Dawn usually kept her
revolver in her purse and it is
apparent from what happened on the day in question that she was alive
to the danger of it falling
into Brooks’s possession. I have
pointed out that she handed her revolver to Aaron when Brooks became
aggressive with instructions
that he was to keep it hidden and in due
course Aaron handed it to the respondent. There is no reason to
believe that Dawn would
not have been at least that cautious if
Brooks had not been in possession of firearms of his own.
[29]
It must be borne in mind
that it was because Brooks confidently and openly possessed two
firearms and piles of ammunition that
he was able to kill members of
his family and to shoot the respondent with such ease. If he had
been deprived of the right to
possess firearms the respondent
certainly would not have been shot in the circumstances that
occurred. While it is possible that
Brooks might have acquired a
firearm in some other way the pattern of events would necessarily
have followed a different course
if that had occurred. Whether that
would have arisen at all, and if so, whether the altered
circumstances would have resulted
in the respondent being shot, are
in my view questions that are so speculative that they should be
discounted from the enquiry.
[30]
In my view there is a
direct and probable chain of causation between the failure of the
police to initiate an enquiry into the
fitness of Brooks to possess
firearms following the incident that occurred on 27 September 1994
and the shooting of the respondent.
It was not suggested that the
respondent’s loss was too remote or that there is any other
reason for not giving legal recognition
to the chain of causation.
51
The negligent and wrongful conduct of the police having been a cause
of the respondent’s injuries the court
a
quo
correctly upheld the claim.
The appeal is dismissed with costs.
_____________________________
R NUGENT
JUDGE OF APPEAL
HOWIE JA )
HEHER AJA )
LEWIS
AJA )
concur
MARAIS JA/
MARAIS
JA:
[1] Subject
to what follows I concur in the judgment of Nugent JA. I am
satisfied that the police were duty-bound in law to act,
that they
were negligent in failing to do so, and that their negligent omission
was a sufficiently potent cause of the harm and
attendant loss which
respondent suffered.
[2] I reach
that conclusion by applying the tests set forth in
Minister
van Polisie v Ewels
52
and
Kruger
v Coetzee
53
and regard it as unnecessary to bolster it by reference to either the
Interim Constitution or the Constitution. For all their
momentous
and enormous historic, symbolic, legal and emotional significance and
status as the supreme law, in my view, their existence
has little
bearing upon this particular case.
[3] Prior
to their advent it was the law that assault is unlawful, 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. I
hesitate to
accept unreservedly that the listing in the Bill of Rights of a right
(whether it be a newly accorded right or a longstanding
one)
necessarily gives rise to the existence of a legal duty to act where
none existed previously. For example, consider the right
to life.
It can hardly be suggested that an omission by an ordinary citizen to
rescue someone in peril or to come to the defence
of someone under
attack which would not have been regarded as a breach of legal duty
prior to the
Constitution,
will now have to be so regarded. Indeed, Nugent JA appears to
recognise that.
54
[4] As I
understand my learned brother Nugent, it is not the inclusion in the
Bill of Rights of the right to human dignity, to life,
and to
security of person alone which is decisive (with which I would agree)
but, in the case of the State, the additional factor
of
constitutionally required accountability. I doubt that the
accountability of which s 41 (1) (c) of the Constitution speaks
(“All
spheres of government and all organs of State within each sphere must
--- provide effective, transparent, accountable
and coherent
government for the Republic as a whole ---“) can be regarded as
prima facie synonymous with liability under
the
lex
Aquilia
for damages for omissions to act.
[5] I accept
that in a given case the accountability requirement
may
prompt a finding that there is liability for a negligent omission to
act but I would prefer not to elevate accountability to the
status of
a factor giving rise to something akin to a rebuttable presumption of
liability to pay damages under the
lex
Aquilia
.
Generalisations of that kind may result in consequences which were
never intended when applied to other situations. The circumstances

of this case do not call for generalisation sourced in either of the
Constitutions and, for my part, I shall avoid it.
[6] As I see
the position, whether or not the particular right which has been
assailed or infringed as a consequence of an omission
to act is one
included in the Bill of Rights, the test set forth in
Ewel’s
case will have to be applied. If the right does happen to be one of
those listed in the Bill of Rights that will of course put
an end to
any argument that might otherwise have arisen as to whether it is a
right to which society attaches great significance.
But the ultimate
question will remain: is an omission to act which is out of kilter
with the value society assigns to the right
and which results in loss
to be actionable? That question has to be answered by applying the
test laid down in
Ewel’s
case.
55
[7] In
answering it, it will also be necessary to bear in mind, as Nugent JA
has, that it is usually the omissions of individual
functionaries of
the State which render it potentially liable. If one is minded to
hold the State liable, one will at the same
time be holding the
individual functionary liable. That he or she may never be called
upon to pay is not a good reason for ignoring
the concomitant
personal liability which will be inherent in finding the State
liable. That does not mean of course that the
spectre of personal
liability should be allowed to paralyse a court when it is
considering whether to recognise that a legal duty
to act exists. It
is simply a reminder that more is at stake than imposing liability
upon an amorphous entity such as the State.
[8] With
respect, I regret that I am obliged to dissent from the suggestion
made in par 12 of the judgment of Nugent JA that, in
order to avoid
conflating two separate elements of liability, it might be helpful to
assume that the omission was negligent when
asking whether, as a
matter of legal policy, the omission ought to be actionable. In my
opinion, that does conflate them and,
more importantly, loads the
dice emotionally in favour of a positive answer to the conceptually
separate question of whether there
is a legal duty to act at all.
[9] I,
too, would dismiss the appeal with costs.
­_________________________
R
M MARAIS
JUDGE OF APPEAL
1
Administrateur, Natal v Trust Bank van Afrika Bpk
1979 (3)
SA 824
(A);
Bayer South Africa (Pty) Ltd v Frost
[1991] ZASCA 85
;
1991 (4) SA
559
(A) 568B-C;
Knop v Johannesburg City Council
1995 (2) SA
1
(A) 24D-F;
Sea Harvest Corporation (Pty) Ltd and Another v
Duncan Dock Cold Storage (Pty) Ltd and Another
2000 (1) SA 827
(SCA) 837G; P.Q.R. Boberg
The Law of Delict
Vol 1 30-34.
2
Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA)
(Pty) Ltd
1985 (1) SA 475
(A) 497B-C;
Knop v Johannesburg
City Council
,
supra,
26F.
3
Cases cited in fn. 1; Boberg,
op cit
, 210-214; Neethling,
Potgieter and Visser:
The Law of Delict
4
th
ed
57-58; McKerron: The Duty of Care in South African Law
(1952) 69
SALJ
189
esp 195-6; LAWSA First Reissue Vol 8
Delict
by
JR Midgley para 54.
4
1966 (2) SA 428
(A) at 430E-F. The test set out in that case is
discussed later in this judgment.
5
But see
Cape Town Municipality v Bakkerud
2000 (3) SA 1049
(SCA) fn. 5
6
See, for example, Botha JA in
Knop v Johannesburg City Council
,
supra,
at 24H
7
1975 (3) SA 590
(A) at 597A-B.
8
Administrateur, Natal v Trust Bank van Afrika Bpk
,
supra,
833H-834C;
Administrateur, Transvaal v Van der Merwe
[1994] ZASCA 83
;
1994
(4) SA 347
(A) at 361G-362C;
Cape Town Municiaplity v Bakkerud,
supra,
at 1056G-H;
Minister of Law and Order v Kadir
[1994] ZASCA 138
;
1995
(1) SA 303
(A).
9
Supra
at 27G-I
10
[1977] UKHL 4
;
[1977] 2 All ER 492
(HL) 498g-h
[1977] UKHL 4
; ;
[1978] AC 728:
11
Sutherland Shire Council v Heyman and Another
(1985) 60 ALR
1
at 43-44
12
[1990] UKHL 2
;
[1990] 1 All ER 568
;
[1990] 2 AC 605
(HL). Subsequently in
Murphy
v Brentwood District Council
[1991] UKHL 2
;
[1990] 2 All ER 908
;
[1991] 1 AC
398
it was expressly held that
Anns
had been wrongly decided.
See too
X and Others (minors) v Bedfordshire County Council et
al
[1995] UKHL 9
;
[1995] 3 All ER 353
[1995] 2 AC 633
(HL);
Barrett v
Enfield London Borough Council
[1999] 3 All ER 193
(HL);
Stovin
v Wise (Norfolk County Council, third party)
[1996] UKHL 15
;
[1996] 3 All ER
801
;
[1996] AC 923
(HL). See too the discussion in
Street on
Torts
10
th
ed by Brazier and Murphy 174-179.
13
At 617G-618C:
14
South Pacific Manufacturing Co Ltd v New Zealand Security
Consultants & Investigations Ltd
[1992] 2 NZLR 282
(CA))
15
Invercargill City Council v Hamlin
[1996] 1 All ER 756 (PC).
16
See:
Brown v The Queen
in right of British Columbia; Attorney-General of Canada, Intervener
(1994) 112 D.L.R (4
th
)
1.
17
(1984) 10 D.L.R. (4
th
) 641
18
(1990) 64 D.L.R. (4
th
) 689
19
[2001] ZACC 22
;
2001 (4) SA 938
(CC) para 54
20
Para 37.
21
Constitution of the Republic of South Africa Act 200 of 1993
22
Sea Harvest
,
supra,
at 837I; Boberg,
op cit
,
210; Fleming:
The Law of Torts
9
th
ed 164.
23
Per
Lord Hoffmann in
Stovin v Wise (Norfolk County
Council, third party), supra,
819b-d.
24
Section 9
25
Section 12
26
Section 14
27
See, for example,
Knop v Johannesburg City Council
,
supra,
at 33C-D;
Hill v Chief Constable of West Yorkshire
[1987] UKHL 12
;
[1989] AC
53
(HL);
[1988] 2 All ER 238.
28
Cape Town Municipality v Bakkerud
,
supra,
para 10.
29
It was emphasized in
Kruger v Coetzee
,
supra,
at
430F-G that the reasonable foreseeability of harm, by itself, does
not require action to be taken to avert it. Action to avert

reasonably foreseeable harm is required only if, in the particular
circumstances, the person concerned ought reasonably to have
acted.
When applied in relation to public authorities matters such as the
extent of their available resources and the ordering
of their
priorities will need to be taken account of in determining whether
the failure to act was negligent.
30
International Shipping Co (Pty) Ltd v Bentley
1990 (1) SA
680
(A) 700I-701F;
Standard Chartered Bank of Canada v Nedperm
Bank Ltd
[1994] ZASCA 146
;
1994 (4) SA 747
(A) 764I-765B.
31
At para 45.
32
(1988) 489 US 189
33
Cf
Government of the Republic of South Africa and Others v
Grootboom and Others
2001 (1) SA 46
(CC).
34
The extent to which private citizens might be entitled to remain
passive is not in issue in this appeal and I make no finding
in that
regard.
35
2001 (3) SA 1247
(SCA) para 31, citing with approval the remarks of
Davis J in
Faircape Property Developers (Pty) Ltd v Premier,
Western Cape
2000 (2) SA 45
(C).
36
Minister of Health and others v Treatment Action Campaign and
others
(unreported Case CCT 8/02 5 July 2002) at para 99-113.
37
City of Kamloops v. Nielsen et al, supra
;
Just v The Queen in right of British
Columbia
;
Brown v
The Queen in right of British Columbia, supra.
38
Cf
Knop v Johannesburg City Council
,
supra,
at 33B-E
39
Cf
Olitski Property Holdings
,
supra,
par 31 and 40
40
[1997] ZACC 6
;
1997 (3) SA 786
(CC) para 69
41
Section 10
42
Section 11
43
Section 12
44
Supra
, esp at 33C-D
45
Supra
, esp at 243f-244 (All ER) ; 63 (AC).
46
Hill v Chief Constable for West Yorkshire
,
supra;
Osman and Another v Ferguson and Another
[1992] EWCA Civ 8
;
[1993] 4 All ER 344
(CA), but see
Osman v United Kingdom
(2000) 29 EHHR 245; cf
Jane Doe v Board of Commissioners of Police for Municipality of
Metropolitan Toronto et al
(1990) 72 D.L.R. (4
th
) 580
(Ont CA)
47
Supra,
at 430E-F.
48
Supra,
at 700E-701F
49
Cf.
Carmichele v Minister of Safety and Security
,
supra,
para 76.
50
Pharmaceutical Manufacturers Association of SA and Another: In
re ex parte President of the Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC) para 90.
51
International Shipping Co (Pty) Ltd v Bentley, supra
, at
700I-701F.
52
1975 (3) SA 590
(A)
53
1966 (2) SA 428
(A)
54
Footnote 34 of his judgment
55
1975 (3) SA 590
(A)