SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
Case No: 10371/2016P
In the matter between:
FLORENCE MABHONI KOBELA 1ST PLAINTIFF
N[...] S[...] A[...] S[...] OBO
I[...] L[...] 2ND PLAINTIFF
and
THE MINISTER OF POLICE DEFENDANT
ORDER
The following order is granted:
The plaintiffs’ action is dismissed, each party to bear its own costs.
JUDGMENT
Sibiya J:
2
Introduction
[1] The plaintiffs seek relief against the defendant for loss of support based on
the death of B[...] L[...] (Mr L[...]), who was shot and killed by T[...] N[...] (Ms N[...]),
both of them being police constables on the relevant date of 3 March 2014. The first
plaintiff is the mother of Mr L[...], with the second plaintiff being the mother of Mr
L[...]’s child.
[2] The plaintiffs’ case, in a nutshell, is that senior officials in the employ of the
Minister of Police (the Minister) were aware of the danger posed by Ms N[...] to Mr
L[...], they owed Mr L[...] a duty to prevent harm to him , they were negligent in failing
to take the necessary steps and this negligence caused Mr L[...]’s death. It has not
been alleged that Ms N[...] was acting in the course and scope of her employment
with the Minister, but rather that she used the official firearm in killing Mr L[...]. The
first plaintiff’s claim is specifically based on her indigence.
[3] The plaintiffs’ claim can only be characterised as delictual. This means that
the plaintiffs must prove a wrongful act or omission, negligence on the part of the
defendant and causation, namely that it was that wrongful and negligent conduct that
caused the damages suffered by the plaintiffs. All the elements must be proven for
the plaintiff to succeed. The plaintiffs specifically pleaded reliance on s 102 of the
Firearms Control Act 60 of 2000 (the Act) in support of both negligence and a
wrongful omission.
[4] The plaintiffs presented the oral evidence of the first plaintiff and a bundle of
documents whose status was that they were what they purport ed to be, but the
content is not admitted as the truth, which documents were marked as ‘exhibit
A’/‘Plaintiffs’ Index’. The first plaintiff testified as follows:
(a) She was referred to a statement that she had prepared soon after the killing
and confirmed it and its contents, indicating that she had been asked about what she
and confirmed it and its contents, indicating that she had been asked about what she
knew of the relationship between Mr L[...] and Ms N[...].
(b) Mr L[...] and Ms N[...] did not have a good relationship , as he had called her
and informed her that Ms N[...] was attacking him, and on her arrival at the place he
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was renting, she found police vehicles outside and police officers inside the room.
She noticed that Ms N[...] was also injured.
(c) A police officer named Sokhela (Sergeant Sokhela) told her not to worry as
their commander was present, pointing at an Indian police offi cer named Lamech
(Col Lamech). Sergeant Sokhela told her that Ms N[...] also worked with them. She
asked how they would work together , as they did not get along, and Sergeant
Sokhela said Col Lamech was saying that they would sort out the issue. She had
never received feedback on how the matter was being sorted out.
(d) She was asked if she knew Colonel Isaiah Ngubane (Col Ngubane) and
whether she had met him before or after the killing, and she respond ed that she had
met him at some offices , where he had called her and the second plaintiff, and this
was after the killing.
(e) In relation to her indigence, she testified that although she is married, Mr L[...]
had been buying her groceries since 2006 when he was a casual worker at Edgars.
When he joined the police in 2008 , he would buy her groceries and give her R1 500
each month. He also used to take her to the doctor. Just before he died, Mr L[...] had
bought her a stand to build a house in Enqabeni , which is between Howick and
Hilton.
(f) She testified that her husband had been employed earning R3 800 per month
until 2015, after which he was unemployed and relied on ‘pension’. The first plaintiff
had also been employed at Manchester making shoes, which came to an end about
three years before Mr L[...]’s job at Edgars.
(g) She testified that she and her husband reside in a municipal accommodation
at 7[...] W[...] Street, where they pay for rates , electricity and water but were
struggling to maintain the payments. Their standard of living had gone down since
the passing of Mr L[...], and they rarely get to eat meat and vegetables, but rather eat
whatever they can, just to ensure that they do not sleep on empty stomachs. She is
whatever they can, just to ensure that they do not sleep on empty stomachs. She is
63 years old and had been receiving an old-age pension since March 2024, but it
was not enough.
[5] Under cross-examination:
(a) The first plaintiff stated that she could not remember when the incident she
testified about had taken place, but that it was her only interaction with Ms N[...]. She
testified that she knew about the protection order taken by Mr L[...] against Ms N[...],
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but when asked whether the incident was before or after the protection order , she
said she did not know.
(b) She was referred to her statement wherein another interaction with Ms N[...]
was reflected, and her response was that this was on another day. She also
confirmed another interaction in 2013 , when Ms N[...] came to report that she was
pregnant with Mr L[...]’s baby. She accepted that this was after Mr L[...] took out the
protection order, and that he still continued a relationship with Ms N[...].
(c) The defendant’s version was put to her, that Mr L[...] and Ms N[...] carried out
their relationship in secret without the knowledge of the police, whom they had told
they had terminated the relationship, and that Mr L[...] had placed himself in danger
by pursuing a relationship with someone he considered to be dangerous.
[6] The first plaintiff was not re -examined and after the first plaintiff responded to
the court’s questions , stating that Mr L[...] was born on 17 May 1984 and that she
was receiving a pension of R2 400, the plaintiffs closed their case.
[7] Ms Mamvura, who appeared for the defendant, opened the defendant ’s case
by explaining that the incident that the first plaintiff testified about had taken place in
October 2012. She explained that no incident involving Mr L[...] and Ms N[...] was
brought to the attention of the police between 2012 , when a protection order was
taken out, and 2014 , when Mr L[...] was killed, and it was only after the murder that
the colonels were made aware of a relationship between Mr L[...] and Ms N[...].
[8] The defendant advanced the oral evidence of two witnesses: Delrys Genias
Lamech (Col Lamech) and Mmeli Isaiah Ngubane (Col Ngubane). They also
produced a bundle of documents which they never referred to in evidence.
[9] Col Lamech testified that:
(a) He is the provincial co -ordinator for the Tactical Response Team (TRT) and in
2012, he was the operational commander at the Pietermaritzburg TRT. He knew Mr
2012, he was the operational commander at the Pietermaritzburg TRT. He knew Mr
L[...], who was a TRT operator on one of the shifts, and he served a protection order
on Ms N[...] from Mr L[...].
(b) He knew of only one incident involving the two, and that was on 24 October
2012, when he attended a dispute at the residence of Mr L[...]. He received a phone
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call after hours from Sergeant Sokhela , who was a friend and team leader of Mr
L[...], reporting the incident. On his arrival at Mr L[...]’s residence on Berg Street
about an hour later , he was met by Sergeant Sokhela , who led him to a room in
which he found Mr L[...], the first plaintiff and Ms N[...]. Everything was calm and Ms
N[...] was talking to the first plaintiff.
(c) He telephoned the unit commander, Col Ngubane, who instructed that the two
members should come to his office the following day at 8 am, as he was at that time
in Pretoria.
(d) On 25 October 2012, at 8h30, a meeting took place between Col Lamech, Col
Ngubane, Ms N[...] and Mr L[...], where Mr L[...] informed the colonels that the
dispute was because the two of them had been in a romantic relationship, which he
had ended in August 2012 but that Ms N[...] was unhappy with the break -up. After
enquiring about the length of the relationship, Col Ngubane instructed Col Lamech to
take Ms N[...]’s firearm and place it in safekeeping, which he did.
(e) Col Ngubane made arrangements for Ms N[...] to be moved to Thronville and
referred her to employee assistance services within the police for counselling. She
started at Thornville on 26 October 2012. On 31 October 2012 , Col Lamech was
requested to serve an interim protection order that had been obtained by Mr L[...] on
Ms N[...], and he did so.
(f) Ms N[...] remained at Thornville for about six months. Around May 2013 , Ms
N[...] reported that she had completed counselling and was fit to return to the unit. A
meeting was convened with the same parties that attended the meeting on 25
October 2012, and both Ms N[...] and Mr L[...] confirmed that th ey had not been in
any relationship since the last time and were no t contemplating any relationship in
future.
(g) Ms N[...]’s fitness was discussed, and it was agreed by all present that she
could return to duty. To err on the side of caution, Ms N[...] and Mr L[...] were placed
could return to duty. To err on the side of caution, Ms N[...] and Mr L[...] were placed
on different shifts , so that they would not be on rest duty at the same time. The
meeting ended on that, and there were no further reports of a relationship or a
dispute involving the two of them. They carried out their duties without incident.
About a year later, they were informed of the shooting.
[10] Under cross-examination, it was put to Col Lamech that he was fabricating the
meeting of May 2013 in which the return of Ms N[...] was discussed and agreed to by
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Mr L[...], because in his affidavit of 2014, he had not mentioned it. Col Lamech
insisted that the meeting had occurred and that his testimony in that regard was an
accurate recollection of events. He denied that it was an afterthought intended to
give the impression that the defendant had done its best.
[11] After initially insisting that he only knew of one incident, Col Lamech
conceded that Mr L[...] had called him earlier saying his fiancée was being followed
by a white vehicle driven by Ms N[...] and that she had started an argument with him.
It was later that evening that he was called to the incident at the home of Mr L[...]. He
further stated that at the meeting the following day , they had downplayed the
incident.
[12] Col Lamech denied any knowledge of a final protection order . He confirmed
that Ms N[...], at the meeting of 25 October 2012, had said she was depressed about
their breakup, and this was the reason she was referred to employee assistance
services. He also confirmed that he was aware that Ms N[...] had laid a charge of
rape against Mr L[...] on the evening of 31 October 2012, the day he had served the
protection order. He was aware that the charge was withdrawn the following day.
[13] Col Lamech denied that he considered Ms N[...] and Mr L[...] to be unreliable
at the time, saying that he and Col Ngubane had believed them. It was in hindsight ,
when they made their discoveries, that he considered that they had not been
forthcoming about their relationship . It was put to him that Ms N[...]’s firearm was
removed to protect both her and Mr L[...], but Col Lamech responded that he did this
because he was instructed by Col Ngubane to put it away for safekeeping.
[14] Col Lamech confirmed that he had a conversation with the first plaintiff at the
house of Mr L[...] and informed her , Mr L[...] and Ms N[...] that Col Ngubane was
convening a meeting the next day at 8 am. He reiterated that when he arrived, it was
convening a meeting the next day at 8 am. He reiterated that when he arrived, it was
calm and the first plaintiff was in conversation with Ms N[...]. He confirmed that
Sergeant Sokhela informed him that Ms N[...] and Mr L[...] were fighting or arguing,
but denied being told that Sergeant Sokhela had heard the sound of a cocking
firearm, broken the door open and found both Ms N[...] and M r L[...] holding the
firearm. He also denied having been given the firearm by Sergeant Sokhela , but
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admitted being the one who returned the firearm to Ms N[...] in May 2013 when she
returned from Thornville.
[15] Col Lamech disputed that he ought to have prepared a n affidavit for an officer
who would assess the fitness of Ms N[...], saying that the situation did not warrant it
and that he had no information that would trigger an investigation into Ms N[...]’s
fitness. It was put to him that he had sufficient information, and that his failure to
conduct an enquiry constituted negligence and this negligence resulted in allowing
Ms N[...] to keep the firearm , which resulted in the killing of Mr L[...]. This was
disputed by Col Lamech, insisting that his actions were appropriate given what he
had witnessed on 24 October 2012. He denied that he failed to protect the life of Mr
L[...] when he had the means to do so, saying he had taken all the steps necessary.
[16] Col Ngubane testified that:
(a) In 2012, he was a unit commander in the same building as the TRT, and he
was in Pretoria when he was informed telephonically about a dispute between two
members by Col Lamech, whom he informed to attend to it , and then tell the
members to come to his office on the next day so that he could discover what the
argument was about , as they worked together in the same unit, and on the same
shift.
(b) The following day at the meeting , Col Lamech stated that when he arrived at
the scene, it was calm and he had spoken to the first plaintiff , who was at that time
talking to Ms N[...]. Mr L[...] informed them that he and Ms N[...] had been in a
relationship but it had ended about a month or so earlier, but Ms N[...] was calling
him and coming to the residence he was renting with a fiancé e or girlfriend and that
is what had happened the previous night. Ms N[...] confirmed that she could not
accept the rejection by Mr L[...] and would spend sleepless nights thinking about it.
(c) He then decided to withdraw her from TRT as it is a critical unit, made
(c) He then decided to withdraw her from TRT as it is a critical unit, made
arrangements to transfer her to Thornville and referred her to employee wellness
service. He further instructed Col Lamech to take Ms N[...]’s firearm, as she would
not be working outside until she completed the sessions with employee wellness
service.
(d) Mr L[...] indicated that he had blocked Ms N[...]’s number on his phone, but, in
addition, would be seeking a protection order against her. Col Ngubane advised him
8
to do what he thought best. He asked them about their relationship and they each
confirmed that there was no relationship anymore.
(e) On 30 or 31 October 2012 , he became aware of the protection order and
instructed Col Lamech to serve the order on Ms N[...], who did so. The following day,
on 1 November 2012 , he was asked by the station commander of Prestbury if he
was aware that Mr L[...] was involved in a rape charge involving Ms N[...], and at that
point, he thought the station commander was joking. He then asked Mr L[...] who
responded that he could not deny it. Col Ngubane then asked him how he was
sleeping with Ms N[...] after obtaining a protection order against her, and there was
no response. He did not probe further as this was a criminal case that had been
opened and he did not want to interfere.
(f) He testified that Ms N[...] had worked at Thornville from that time until about
May or June 2013 , when she indicated that she had finished seeing the doctor and
was ready to return to work. A meeting was convened with Ms N[...], Mr L[...], Col
Lamech and a Sergeant Ngobeni. Mr L[...] confirmed that he had not received any
phone calls nor had he been followed by Ms N[...] since the time she left, and that he
would be happy for her to return to the TRT. Ms N[...] was nevertheless placed on a
different shift so that they did not work together.
(g) He then instructed Col Lamech to return the firearm to Ms N[...], as members
of the TRT were always on standby and were always facing threats from syndicates.
(h) In March 2014, he received information of a shooting that took place where Mr
L[...] was staying and he made his way there and found the local police interviewing
a witness who said the shooter was a heavily pregnant, short African woman and this
matched Ms N[...]’s description. He dialled her phone but she did not answer, and he
activated TRT to locate her with SNIPR cameras but they were unsuccessful that
activated TRT to locate her with SNIPR cameras but they were unsuccessful that
evening. Ms N[...] presented herself at the Vryheid police station a few days later.
[17] Under cross-examination, he was shown a statement that he confirmed was
his, detailing what he knew of the relationship between Mr Lembede and Ms N[...].
He conceded that his statement did not mention the meeting of May/June 2013 and
he responded that he remembered it because he was required to hold such a
meeting before allowing Ms N[...] to return. He denied that it was an afterthought
intended to create the impression that they had done everything to save the
situation.
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[18] He further confirmed that it was the letter from the doctor that satisfied him as
to the readiness of Ms N[...] to return to work , and when asked why the statement
made no mention of the doctor’s letter but instead stated that he relied on Ms N[...]’s
say-so, Col Ngubane responded that there were shortcomings in his statement. He
confirmed that at the meeting in October 2012 , Ms N[...] had indicated that she was
suffering from ‘a depression’ and that , to him, her emotional and psychological state
required attention. He denied that the registering of a rape charge gave him the
impression that despite their words to the contrary , Mr L[...] and Ms N[...] were still
seeing each other, saying that it was reported as a rape and he did not follow up as it
was being investigated by a different unit.
[19] It was put to Col Ngubane that as he called Mr L[...] to ask him about the
charge, a reasonable officer would have followed up on the rape charge, but he
insisted that they do not follow up because it might be interpreted as interference in
the investigation. He was asked if the reasons for the protection order were
consistent with the content of the protection order and he confirmed this.
[20] When asked about whether Sergeant Sokhela had informed him of any
incident in which he disarmed Mr L[...] and Ms N[...], who were fighting over a
firearm, he denied this , and further denied ever communicating with Sergeant
Sokhela about the two colleagues or the firearm . Col Ngubane was referred to the
final protection order in the bundle and he denied ever having known of its existence.
[21] It was put to Col Ngubane that given the information in the interim protection
order, nothing prevented him from preparing a statement under oath and submitting
it to the officer dealing with an inquiry into the fitness of the police officer to possess
a firearm, as required by s 102 of the Act. Col Ngubane disagreed, stating that this
a firearm, as required by s 102 of the Act. Col Ngubane disagreed, stating that this
was the purview of the police station receiving the final protection order , as it is that
station that does the inquiry. He insisted the inquiry only follows on the final
protection order being granted not the interim order.
[22] Col Ngubane stated that a statement is usually done when a case is opened ,
indicating there was a threat to kill , and denied that anyone who has information of
10
an expression of an intention to kill had an obligation to require an inquiry. He denied
that the death was foreseeable and that it caused the loss to the first plaintiff and the
second plaintiff’s child , saying that on his side it was not foreseeable. He had no
comment on the suggestion that the failure to trigger an inquiry resulted in the death
of Mr L[...] with a State-issued firearm.
[23] There was no re -examination and the defence then closed its case. The
matter was adjourned for closing arguments on 15 April 2026.
Plaintiff’s submissions
[24] Mr Ndlovu made submissions on behalf of the plaintiffs under the following six
headings.
The duty of care
[25] The defendant owed the plaintiffs a legal duty of care. He submitted that the
police had a duty to take the firearm from Ms N[...] and only return it after she had
been subjected to an inquiry into her fitness. This duty of care was said to flow from
s 205(3) of the Constitution , as amplified in Minister of Safety and Security v Van
Duivenboden,1 where the court stated that
‘While private citizens might be entitled to remain passive when the constitutional rights of
other citizens are under threat, 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.’ (Footnote omitted.)
[26] He also referred to Dlanjwa v Minister of Safety and Security,2 where the court
stated the following
‘I fail to understand why the appellant must be indicted for not having complained to senior
officers at the police station when the deceased was not disarmed as the defence counsel
urged us to do. The duty lay squarely on the police to investigate her complaints once she
reported that she feared for her safety. As the trial court pointed out, the Constitution, in s 12
(1)(c) which guarantees the right to freedom and security of the person, including the right to
be free from all forms of violence, and the South African Police Service Act, impose a
1 Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) (Van Duivenboden) para
20.
2 Dlanjwa v The Minister of Safety and Security [2015] ZASCA 147 para 24.
11
positive obligation on the police to ensure the safety and security and protect the members
of the public in general and women and children in particular from violent crime .’ (Footnotes
omitted.)
Negligence
[27] He submitted that the police were negligent in returning the firearm to Ms
N[...] without holding an inquiry in light of the information that Col Lamech was privy
to, which was reflected in the interim protection order , in particular pages 31 to 32 3
thereof, as he had testified he was privy to the content. Mr Ndlovu accepted that it
was not for Col Lamech to adjudicate the protection order but insisted that it was still
before him. According to Mr Ndlovu, what was contained in the relevant pages was
that there was another altercation on 25 October 2012, before 8 am, during which
Ms N[...] threatened to shoot herself and Mr L[...], resulting in Mr L[...] taking the
firearm away and this was sufficient to trigger the provisions of s 102.
[28] He referred to the evidence of the first plaintiff that on the relevant night, both
Mr L[...] and Ms N[...] were injured, which was not challenged or disputed in cross -
examination, and it was impossible that Col L amech would have missed the injury.
He further relied on Van Rooyen v Minister of Police4 and other cases for the
submission that the failure of the police officers to act in relation to the firearm ,
having come to the knowledge of information that Ms N[...] intended to kill or injure
another person, constitutes negligence.
Causation
[29] Mr Ndlovu submitted that the test for causation is set out in International
Shipping Co (Pty) Ltd v B entley,5 which includes both legal and factual causation
and whether there is a sufficiently close link between the omission and the harm. He
submitted that foreseeability applied both subjectively and objectively . Mr Ndlovu
argued that the foreseeability of harm was evident from the fact that they took away
argued that the foreseeability of harm was evident from the fact that they took away
the firearm from Ms N[...] and put it into a safe for a period of time. Having foreseen
3 Contents of pages 31 and 32 of the interim protection order are reproduced in para 49 of this
judgment.
4 Van Rooyen v Minister of Police 2013 JDR 1149 (GNP).
5 International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) (International Shipping).
12
the harm, what they did wrong was returning the firearm without holding the inquiry
in terms of s 102.
[30] Regarding objective foreseeability , he submitted that a reasonable police
officer in the position of Col Lamech and Col Ngubane would have foreseen the
harm occurring, and the foreseeability relates to Ms N[...] being in possession of a
firearm without being properly assessed in terms of the law.
Credibility of witnesses
[31] Mr Ndlovu submitted that Sergeant Sokhela had made a statement that
contradicted the evidence of Col Lamech in relation to him getting hold of the firearm
during the incident on the evening of 24 October 2012, and handing it to Col
Lamech, which version was disputed by Col Lamech. He argued that th e court
should consider the failure to call Sergeant Sokhela as reflecting negatively on the
credibility of Col Lamech . He further submitted that because the statement was
made by an employee of the Minister, it constitutes an exception to the hearsay rule,
relying on Botes v Van Deventer,6 and Moscon Thyme CC v J P Krugerrand Deals
CC.7
[32] He submitted that both Col Lamech and Col Ngubane testified of a second
meeting in 2013 but it should be treated as an afterthought , as it was not mentioned
in either of their statements and only one meeting was pleaded. He urged the court
to approach the defendant’s case by accepting that there is an unfavourable
statement which is inimical to the interests of the defendant , which should be viewed
dimly in light of the status of the documents and the admission contained therein.
Indigence of the first plaintiff
[33] Mr Ndlovu submitted that the unchallenged evidence of the first plaintiff
demonstrated her indigence. He referred the court to Gesina v Road Accident Fund,8
Langa and Others v Road Accident Fund9 and other cases.
6 Botes v Van Deventer 1966 (3) SA 182 (A) at 206A-C; see also Zungu NO v Minister of Safety and
Security 2003 (4) SA 87 (D) at 94C-95B.
Security 2003 (4) SA 87 (D) at 94C-95B.
7 Moscon Thyme CC v J P Krugerrand Deals CC [2014] ZAGPJHC 24 paras 10- 11 .
8 Gesina v Road Accident Fund [2017] ZAGPPHC 188 paras 7-10, and 14-20.
9 Langa and Others v Road Accident Fund [2016] ZAGPPHC 876 paras 13-14.
13
Onus
[34] The plaintiffs accepted that they bore the onus of proving, on a balance of
probabilities that the defendant had a legal duty, was negligent and such negligence
caused the harm and the consequences of the harm, as well as the indigency of the
first plaintiff. He submitted that the balance of probabilities was in favour of the
plaintiffs, particularly in relation to negligence and causation.
Defendant’s submissions
[35] Ms Mamvura summarised the defence’s evidence as two people who worked
together as police officers and had a romantic relationship , unbeknown to their
superiors. An altercation had occurred between them and Col Lamech had attended
the scene and on his arrival , he briefed Col Ngubane and a meeting was held the
next day, on 25 October 2012 , at which it was established that they had been in a
relationship, which had been terminated by Mr L[...], and that Ms N[...] could not
accept the termination.
[36] She stated that the steps taken following this discovery were that Col Lamech,
on Col Ngubane’s instruction, had confiscated Ms N[...]’s firearm, Ms N[...] was
transferred to Thornville, ensuring that she was separated from Mr L[...], and further
referred to employee wellness services. Both Ms N[...] and Mr L[...] gave assurances
that they were no longer seeing each other. Mr L[...] expressed an intention to obtain
a protection order and such protection order was served on Ms N[...] on 31 October
2012. This was enough for the police to accept that the situation was under control.
[37] Ms Mamvura further stated that following a phone call from Ms N[...] in 2013,
in which she indicated to Col Ngubane that she was ready to return to work, a
meeting had been held with both Mr L[...] and Ms N[...], as well as Col Lamech. As a
sign of caution, when she was allowed to return , they were assigned to different
shifts. There were no incidents reported involving Mr L[...] and Ms N[...] from 2013
shifts. There were no incidents reported involving Mr L[...] and Ms N[...] from 2013
until the incident which resulted in the killing of Mr L[...] in 2014. The shooting was a
shock to both Col Lamech and Col Ngubane and this incident could have been
averted had Mr L[...] not violated the protection order, as it turned out that he was in
a secret relationship with Ms N[...].
14
[38] She submitted that Ms N[...] and Mr L[...] were adult police officers and did not
need to be babysat by their superiors . She repeated that it was the evidence of the
first plaintiff that Ms N[...] had reported a pregnancy , which resulted from Mr L[...].
Her final submission was that the defendant was not negligent and had taken all the
steps a reasonable police officer would have taken under the circumstances.
[39] In response to Mr Ndlovu, Ms Mamvura repeated that although both Col
Ngubane and Col Lamech had been present and given evidence, they had not been
confronted with the contents of the protection order for it to be tested. She concluded
by submitting that the plaintiffs had failed to discharge the onus on them and that the
action should be dismissed with each party to pay their own costs.
The law
[40] Section 102 of the Act deals with a declaration by the registrar of a person as
being unfit to possess a firearm. The section provides for various instances that a
person may be called upon to answer why they should not be declared unfit to
possess a firearm. Although not specified in the particulars of claim, it appears that
the plaintiffs rely on ss 102(1) and (2) of the Act, which provide that:
‘102(1) The Registrar may declare a person unfit to possess a firearm if, on the grounds of
information contained in a statement under oath or affirmation including a statement made
by any person called as a witness, it appears that-
(a) a final protection order has been issued against such person in terms of the
Domestic Violence Act, 1998 (Act 116 of 1998);
(aA) a final protection order has been issued against such person in terms of the
Protection from Harassment Act, 2011;
(b) that person has expressed the intention to kill or injure himself or herself or any other
person by means of a firearm or any other dangerous weapon;
(c) because of that person's mental condition, inclination to violence or dependence on
(c) because of that person's mental condition, inclination to violence or dependence on
any substance which has an intoxicating or narcotic effect, the possession of a
firearm by that person is not in the interests of that person or of any other person;
(d) that person has failed to take the prescribed steps for the safekeeping of any firearm;
or
(e) that person has provided information required in terms of this Act which is false or
misleading.
15
(2) A declaration under subsection (1) may only be issued if the Registrar-
(a) by notice in writing delivered by hand to the person, has called upon the person to
appear before the Registrar at a time and place determined therein in order to
advance reasons as to why that person should not be declared unfit to possess a
firearm;
(b) has given that person a reasonable opportunity to advance reasons as to why the
declaration should not be issued;
(c) has duly considered the matter;
(d) is satisfied that the person is unfit as contemplated in subsection (1); and
(e) does not rely solely on the same facts relating to a conviction in respect of which a
court has made a determination in terms of section 103 (1) or (2) that the person is
not unfit to possess a firearm.’
[41] Section 205 of the Constitution provides in subsec 3 that:
‘The objects of the police service are to prevent, combat and investigate crime, to maintain
public order, to protect and secure the inhabitants of the Republic and their property, and to
uphold and enforce the law.’
[42] The requirements for delictual liability are already set out in paragraph 3 of
this judgment. Where a wrongful act consists of an omission or failure to act , the test
is whether there existed a legal duty to act to avoid harm in the prevailing
circumstances. Mr Ndlovu already referred to the relevant case law. In Van
Duivenboden the court stated that:10
‘Where there is a potential threat of the kind that is now in issue the constitutionally protected
rights to human dignity, to life and to security of the person 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
various interests that are to be taken into account in determining whether an action should
be allowed … but I can see none that do so in the present circumstances.… 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
10 Van Duivenboden para 22.
16
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.’ (Footnotes omitted.)
[43] In Minister van Polisie v Ewels ,11 the court held that a negligent omission is
unlawful conduct when the circumstances are of such a nature as to not only evoke
moral indignation but also the legal convictions of a community require that it should
be regarded as unlawful. In short, if police officers are aware of a threat posed by a
police officer to the right to the life and safety of a person, and they fail to take
reasonable steps to ensure that harm is prevented, that failure will constitute
wrongful conduct.
[44] The test for negligence was long established in Kruger v Coetzee 12 as being
whether a reasonable person in the position of the defendant would have foreseen
the possibility of harm, and having done so , would have taken steps to prevent the
harm, and that the defendant has failed to take reasonable steps. The onus is on the
plaintiff to prove that steps taken, if any, were not reasonable.
[45] In as far as causation is concerned , the court ha s stated the following in
International Shipping:13
‘… in the law of delict causation involves two distinct enquiries. 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
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
11 Minister van Polisie v Ewels 1975 (3) SA 590 (A) at 597A-B.
12 Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-F.
13 International Shipping at 700E-701C.
17
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”.’
[46] This means that the failure of the police to take certain steps must be the
direct cause of the harm, and in order to determine this , the failure must be closely
linked, in time and space, to the harm.
Analysis
[47] At the outset, I confirm that the evidence of the witnesses was correctly
summarised by counsel and I do not have to repeat that exercise. Further, I found all
three witnesses to be good witnesses, testifying to events as they remembered
them. I am aware of the lapse of time since the events that they were testifying to,
which all happened between 13 and 14 years ago. In addition, the cross-examination
of the first plaintiff was not directed at challenging her evidence on the events of 24
October 2012.
[48] The cross-examination of the defendant’s witnesses , on the other hand , was
directed mostly at challenging what they knew about the toxicity of the relationship
between Mr L[...] and Ms N[...], about her alleged unfitness to possess a firearm, and
the steps they consequently took against what was recorded in their statements .
the steps they consequently took against what was recorded in their statements .
Having considered the evidence of the police witnesses, I am not convinced that
they fabricated the second meeting prior to the return of the firearm to Ms N[...]. The
actions taken when they first learned of the incident of 24 October 2012 suggest that
they appreciated the seriousness of the matter, even assisting Mr L[...] by serving the
protection order on Ms N[...], who, having been dispossessed of her firearm, was
also moved to another police station.
18
[49] It is necessary to reproduce the content of the protection order upon which the
plaintiffs rely, as they state that such content ought to have triggered an inquiry into
the fitness of Ms N[...] to be given her firearm back. It is written by Mr L[...] and states
as follows:
‘I was in a dating relationship with her for seven months. During August 2012 I told her that
we must brake [break] up but she refused to do so.
On the 24 th October 2012 the respondent came to my place of residence without my
permission. She saw me with my other girlfriend. When I was talking with my girlfriend
namely S[...] the respondent just cocked her gun wanted [wanting] to shoot me . I ran away
she chased me with the gun. She was carrying the gun with her hand. I reported her to the
captain. The captain talked to her. The respondent told the captain Mr Lamech that she will
never do it again.
On the 25th October 2012 she also came to my place of residence. She pushed the door, my
room door with her hands. She took out a gun from under her clothes. When she took out
the gun I grabbed the gun. She failed to shoot me. I took the gun to the captain Mr Lamech.
The gun is still with the captain.
On the 25th October 2012 after I took the gun away from her I asked her what she would do
with the gun. She told me that she was going to shoot me and shoot herself. Now I am in
fear for my life.
I want her to stop coming to my place of residence where I’m renting. I’m renting a room
from Mrs Lightbody and I don’t want her to contact me and to send S.M.S.’s to my cell
phone. I don’t want her to come near me. I want her to stop threatening to kill S[...], because
on the 24th October 2012 she threatened to kill S[...] if S[...] does not break up with me.’
The protection order is dated 29 October 2012.
[50] It is apparent from a mere reading of this order that the incidents complained
of are not the same as what was testified to by the first plaintiff, Col Lamech or Col
of are not the same as what was testified to by the first plaintiff, Col Lamech or Col
Ngubane. Although Col Lamech is mentioned specifically in the order , he was not
confronted with the version. This is also different to the version put to Col Lamech in
cross-examination. Importantly, the main incident testified to by both the first plaintiff
and Col Lamech is not part of the protection order.
[51] Col Lamech and Col Ngubane testified that the firearm was taken from Ms
N[...] at the meeting on 25 October 2012. It was put to Col Lamech that he was given
19
the firearm by Sergeant Sokhela at the home of Mr L[...]. The protection order states
Mr L[...] took the firearm from Ms N[...] and that he gave it to Col Lamech on 25
October 2012.
[52] In addition, it was put to Col Lamech that Sergeant Sokhela informed him he
had heard the cocking of a firearm and had broken the door. This is not mentioned in
the protection order, instead, what is mentioned is that the cocking of the firearm had
taken place when Mr L[...] was with his girlfriend and Ms N[...] and that Ms N[...] had
been chasing him with the firearm.
[53] In my view, given the above discrepancies, it was necessary for the colonels
to be confronted with the specific paragraphs of the protection order that the plaintiffs
rely on. It would be improper for me to draw the conclusion that the colonels , and by
extension the Minister, knew about threats to shoot Mr L[...] that were only
mentioned in the protection order. Even more so when they were not called upon to
comment on those allegations.
[54] Mr Ndlovu complained about the failure of the defendant to call Sergeant
Sokhela as a witness when his statement was prejudicial to the Minister and
contradicted the evidence of Col Lamech. He suggested that this should go to the
credibility of Col Lamech. The relevant part of such statement reads as follows:
‘(2) On 2012 at about 16H00 I was at Cst L[...]’s place with him. Whilst we were both talking I
suddenly saw Cst F N[...] approach us. She asked permission to enter L[...]’s room. Cst L[...]
refused and Cst F N[...] proceeded to the room without L[...]’s permission. L[...] followed her.
(3) After a while I heard a cocking noise of a firearm which then quickly led me to quickly run
inside. The door was locked and I broke the door and entered. They were both holding the
fire-arm I interfered and managed to win the firearm in my possession and while I was busy
calling my commander captain Lamech they were still continuing fighting. Captain Lamech
calling my commander captain Lamech they were still continuing fighting. Captain Lamech
he didn’t take too long to arrive. I told him what happened and handed over the firearm to
him. Captain Lamech went inside the room and the fight stopped. He sat down with them
and talked.’
[55] The defendant did not withhold the statement of Sergeant Sokhela, but did not
call him as a witness. No reason was given for this failure. I do not agree that, having
20
disclosed the statement and its contents, the defendant had a duty to call him as a
witness, given that it was not the party that bore the onus.
[56] The statement does not say that Sergeant Sokhela told Col Lamech about the
firearm and about breaking the door down. It merely states ‘I told him what happened
and handed the firearm to him’. I have already highlighted that according to the
protection order , it was Mr L[...], who, without the presence or intervention of
Sergeant Sokhela, and on 25 October (as opposed to the 24 th) handed the firearm to
Col Lamech.
[57] I will repeat that the onus was on the plaintiff to prove that there existed
circumstances that created a duty on the defendant to hold an inquiry , in terms of
s 102 of the Act, into the fitness of Ms N[...] to possess a firearm. The plaintiff s
placed reliance on the contents of the protection order, read with the statement of
Sergeant Sokhela to prove their case.
[58] I accept without reservation that there exists a duty on the police to protect
members of the public, and any person who is being threatened, against harm. The
evidence that a firearm was taken from Ms N[...], that she was moved to another unit
in another police station and that she was referred for counselling by Col Ngubane
was not disputed. This action, in my view, shows that Col Ngubane appreciated that
there was a threat of harm to Mr L[...], perpetuated by Ms N[...]. However, according
to Col Ngubane, this appreciation stemmed from the incident of the previous evening
that he had been informed of, and from Ms N[...] confirming that her actions were
erratic because she was having great difficulty accepting the breakup and was , in
fact, depressed. He did not know about the threats of killing and the pointing of a
cocked firearm.
[59] In addition, Col Ngubane and Col Lamech received assurance from both Ms
N[...] and Mr L[...] that they were no longer in any relationship, and they would stop
N[...] and Mr L[...] that they were no longer in any relationship, and they would stop
all contact. This was not disputed and was cemented by Mr L[...] securing a
protection order against Ms N[...], which was duly served by Col Lamech.
21
[60] Col Ngubane testified that he received medical confirmation that Ms N[...] had
finished her treatment and was ready to resume duty in the TRT unit. This was six
months after she had left and started treatment and counselling. His evidence was
that prior to agreeing to her return , he convened a meeting which included Mr L[...],
who agreed that he had no objections to her return , together with Col Lamech and
Ms N[...].
[61] The evidence of Col Ngubane as to the procedure followed when s 102 of the
Act was triggered could not be refuted. His evidence was that it was the police
station that issued or enforced the protection order that would make the decision
whether or not to hold an inquiry, and this only followed on the final protection order
being granted. He had not known of the final protection order.
[62] I am not convinced that Col Ngubane, or indeed Col Lamech, on the
information they had, and given the circumstances under which the firearm had been
taken from Ms N[...], foresaw the possibility of harm to Mr L[...] when Ms N[...]
returned to the TRT unit and was given the firearm.
[63] In my view, given that no complaints were reported between the time Ms N[...]
was served with the protection order and when she shot Mr L[...], a year and six
months later, a reasonable person in the position of Col Lamech and Col Ngubane
would not have foreseen the possibility that Ms N[...] would harm Mr L[...]. From the
common cause fact that Ms N[...] was pregnant through Mr L[...] at the time of the
shooting, it is clear that Mr L[...] had been in contact with Ms N[...], despite having
taken a protection order against her. The only reasonable conclusion that can be
drawn from such conduct by Mr L[...] is that he did not consider Ms N[...] to be a
threat to his life. How, then, could his superiors, whom he had informed that he was
no longer in a relationship with Ms N[...], and to whom he never reported any
complaint, think that Ms N[...] was a threat to Mr L[...]?
complaint, think that Ms N[...] was a threat to Mr L[...]?
[64] While I agree with the principles set out in the case law referred to in this
judgment, the overriding consideration is always that each case is decided on its
own facts. In the present case, while the police have the general duty to protect
persons against harm and threats to their rights, there was no indication that Mr L[...]
22
required protection against Ms N[...]. Beyond that, Mr L[...] himself lied to his
superiors about a relationship with Ms N[...] and maintained contact with her in spite
of the protection order he had taken against her.
[65] In my view, given that the conduct complained of is the failure to convene an
inquiry into the fitness of Ms N[...] to possess a firearm prior to returning it to her, the
plaintiffs have failed to prove that such inquiry was triggered in the circumstances. If
the inquiry was not triggered, the defendant was not negligent in failing to hold one.
[66] More than that : if Ms N[...] had been cleared to return to the TRT unit by her
doctor, and there had been no complaints at all about her conduct since she started
treatment, it is highly unlikely that an inquiry would have yielded a negative result, ie
that she was unfit to possess a firearm. I say this given Mr L[...]’s consent to her
return to the same unit. Even then, Col Ngubane assigned Mr L[...] and Ms N[...] to
different shifts in order to minimise contact between them.
Conclusion
[67] In the special circumstances of this case, there was a lapse of some 10
months between the return of the firearm to Ms N[...] and the shooting of Mr L[...],
without any other complaints. None are mentioned in Sergeant Sokhela’s statement
either, nor did the first plaintiff testify to any.
[68] It is my conclusion that even if an inquiry had been held prior to returning the
firearm to Ms N[...], the shooting would still have occurred. This is because Mr L[...]
supported Ms N[...]’s return to the unit that required her to have a firearm, and
voluntarily kept up or resumed a relationship with Ms N[...] which was hidden from
their superiors. The shooting was related directly to the hidden relationship between
Ms N[...] and Mr L[...]. No action by the defendant would have prevented the killing of
Mr L[...], as long as he voluntarily and secretly continued a relationship with Ms N[...].
Mr L[...], as long as he voluntarily and secretly continued a relationship with Ms N[...].
The plaintiffs have failed to discharge their onus.
[69] While I am sympathetic to the plaintiffs for the loss they have suffered
because of the death of Mr L[...], that is not a basis to find that the defendant is liable
for their loss in these circumstances. I believe it was also sympathy that led the
23
defendant not to seek costs against the plaintiffs, and , instead, to seek that each
party pay its own costs.
Order
[70] In the result, the following order issues:
The plaintiffs’ action is dismissed, each party to bear its own costs.
____________________
SIBIYA J
24
APPEARANCES
Counsel for the Plaintiffs : Mr T Ndlovu
Instructed by : M.H. Mathonsi and Associates
Ref : 01L026001/01L026002/01K102001
mmathonsi@telkomsa.net
Counsel for Defendant : Ms GM Mamvura
Instructed by : Office of the State Attorney, KZN
REF : 610/1721/16/K/P12
Date of Hearing : 13-15 April 2026
Date of Judgment : 07 July 2026