Brooks v Minister of Safety and Security

• Jurisdiction: South Africa
• Citation: 2008 (2) SA 397 (C)

Brooks v Minister of Safety and Security
2008 (2) SA 397 (C) [*]

2008 (2) SA p397

Citation	2008 (2) SA 397 (C)
Case No	7333/2003
Court	Cape Provincial Division
Judge	HJ Erasmus J
Heard	September 20, 2007
Judgment	September 20, 2007
Counsel	RS van Riet SC (with JH Roux SC) for the plaintiff.; A Schippers SC (with R Jaga) for the defendant.

Flynote : Sleutelwoorde E

Delict — Action for damages — For loss of support — Extension of — Breadwinner by own intentional act rendering himself unable to support dependant — Plaintiff's father sentenced to imprisonment for murder committed by F firearm — Plaintiff claiming damages from minister on ground that police failed to declare father unfit to possess firearm — Policy considerations not requiring extension of delictual liability to cover situation in question — No duty on members of police to act as contended for.

Delict — Action for damages — For loss of support — Dependant's action — Nature G of — Wrongdoer committing delict against dependant, not bread- winner — Wrongdoer accordingly breaching duty of care owed to dependant.

Headnote : Kopnota

The plaintiff instituted action in the High Court for damages arising out of an incident in which his father opened fire on a number of people, killing three H of them, including his wife and daughter, and wounding five others, including the plaintiff who was 14 at the time. The plaintiff's father was subsequently convicted of various crimes, including murder, and sentenced to 20 years' imprisonment, which he was serving at the time of institution of the present action. The plaintiff claimed damages under several heads, including damages for loss of support arising from his father's incarceration I and loss of a proper education opportunity as a result of that loss. The plaintiff alleged that there had prior to the episode in question been several incidents from which a number of police officers had obtained direct

2008 (2) SA p398

A knowledge that his father was unfit to possess a firearm but that they had taken no steps to have him declared unfit to possess a firearm. The plaintiff alleged further that the police officers concerned had owed a legal duty to all persons who might be prejudicially affected, in the event of his father using his weapons to kill or injure, to initiate the necessary procedure to have him declared unfit to possess a firearm. The plaintiff alleged that he B was a person who would be prejudicially affected as, inter alia, he was dependent for support on his father, and his father's ability to support him would be prejudicially affected if he were convicted of a crime and incarcerated. The defendant excepted to the plaintiff's claims for loss of support on the bases that the police had neither committed any delict against the plaintiff's father, nor had they acted wrongfully. C

Held, that an infringement on a dependant's right to support was a wrongful act committed against the dependant and not the breadwinner. The legal duty was in the dependant's favour, not that of the breadwinner. (Paragraph [28] at 408C.) The cause of action pleaded by the plaintiff, a negligent breach of a legal duty owed by the police to the plaintiff (as dependant), was in accordance with the principles applicable to the dependant's action for loss D of support. The defendant's first ground of exception could, therefore, not be sustained. (Paragraph [29] at 409B - C.)

Held, further, that the court was being asked to extend delictual liability by allowing the claim of a dependant where the breadwinner had, by his own intentional act (the plaintiff's father had been convicted of murder), rendered himself unable to support his dependant, a situation where no E liability existed previously. The crucial question was whether there were any considerations of public or legal policy which required such extension. (Paragraph [40] at 413G - H.)

Held, further, that as a matter of public and legal policy the State should not be burdened by claims for loss of support by the dependants of persons who by their own acts had rendered themselves unable to support their dependants. F (Paragraph [45] at 415C.) In the circumstances of the present case, there was no legal duty on the members of the police as contended for by the plaintiff. (Paragraph [46] at 415D.) Exception to plaintiff's claim for loss of support and for loss of an education opportunity arising from the incarceration of his father upheld. (Paragraph [53] at 417D - E.) G

Cases Considered

Annotations

Reported cases

Abbott v Bergman 1922 AD 53: referred to

Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) 1999 (4) SA 1319 (SCA) ([1999] 4 All SA 421): referred to H

BOE Bank Ltd v Ries 2002 (2) SA 39 (SCA) ([2002] 2 All SA 247): dicta at 46F - G and 49C (SA) applied

Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA) ([2000] 3 All SA 171): referred to

Carmichele v Minister of Safety and Security and Another 2001 (1) SA 489 (SCA) ([2000] 4 All SA 537): referred to I

De Vaal NO v Messing 1938 TPD 34: referred to

Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA) (2003 (11) BCLR 1220): referred to

Erdmann v Santam Insurance Co Ltd 1985 (3) SA 402 (C): referred to

Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A): dictum at 837H - 838B discussed and applied I

2008 (2) SA p399

First National Bank of South Africa Ltd v Duvenhage 2006 (5) SA 319 (SCA) A ([2006] 4 All SA 541): referred to

Hully v Cox 1923 AD 234: referred to

In re Estate Visser 1948 (3) SA 1129 (C): referred to

Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A): dictum at 801A - C applied

International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A): referred to B

Ismail v General Accident Insurance Co of SA Ltd 1989 (2) SA 468 (D): dictum at 473C - D applied

Jameson's Minors v Central South African Railways 1908 TS 575: referred to

Legal Insurance Company Ltd v Botes 1963 (1) SA 608 (A): referred to

Mentz v Simpson 1990 (4) SA 455 (A): referred to C

Millward v Glaser 1949 (4) SA 931 (A): referred to

Minister of Finance and Others v Gore NO 2007 (1) SA 111 (SCA) ([2007] 1 All SA 309): dictum at 138I - 139A (SA) applied

Minister of Law and Order v Kadir 1995 (1) SA 303 (A): dictum at 318H - J applied

Minister of Safety and Security and Another v Carmichele 2004 (3) SA 305 (SCA) D (2004 (2) BCLR 133; [2003] 4 All SA 565): dictum at 324 E-H (SA) applied

Minister of Safety and Security v Hamilton 2004 (2) SA 216 (SCA) ([2003] 4 All SA 117): dictum at 229E - H (SA) applied

Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) ([2002] 3 All SA 741): dicta at 444E - G, 446F - G and 447F - 448D (SA) E applied

Olitzki Property Holdings v State Tender Board and Another 2001 (3) SA 1247 (SCA) (2001 (8) BCLR 779): referred to

Plotkin v Western Assurance Co Ltd and Another 1955 (2) SA 385 (W): referred to

Santam Bank v Henery 1999 (3) SA 421 (SCA) ([1999] 2 All SA 312): F referred to

Suid-Afrikaanse Nasionale Trust en Assuransie Maatskappy Bpk v Fondo 1960 (2) SA 467 (A): referred to

TWK Agriculture Ltd v Forestry NCT Co-operative Ltd and Others 2006 (6) SA 20 (N): referred to

Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards G Authority SA 2006 (1) SA 461 (SCA) ([2006] 1 All SA 6): dicta at 465F, 465G, 468B and 468C (SA) applied

Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA): dicta at 143I - J and 145C applied

Union Government (Minister of Railways and Harbours) v Warneke 1911 AD 657: referred to H

Van Eeden v Minister of Safety and Security (Women's Legal Centre Trust, as Amicus Curiae) 2003 (1) SA 389 (SCA) ([2002] 4 All SA 346): dicta at 395H - 396A and 396H (SA) applied

Van Zyl NO v Bolton 1994 (4) SA 648 (C): referred to

Voget and Others v Kleynhans 2003 (2) SA 148 (C): referred to

Zimnat Insurance Co Ltd v Chawanda 1991 (2) SA 825 (ZS): dictum at I 830E applied.

Case Information

Exception to particulars of a claim in an action for damages for loss of support and for the loss of an education opportunity arising from the incarceration of the plaintiff/dependant's father. The facts appear from the reasons for judgment. J

2008 (2) SA p400

RS van Riet SC (with JH Roux SC) for the plaintiff. A

A Schippers SC (with R Jaga) for the defendant.

Cur adv vult.

Postea (September 20). B

Judgment

HJ Erasmus J:

Introduction

[1] This case arises from the same events that gave rise to the claim for C damages in Minister of Safety and Security v Van Duivenboden. [*1] On 21 October 1995 Neil Brooks (Brooks), the natural father of the plaintiff in this case, opened fire on a number of people, killing three of them, including his wife and daughter, and wounding five others, including the plaintiff, who was 14 years old at the time, and Van Duivenboden, a neighbour. As a result of this shooting incident Brooks was charged and D convicted of various crimes, including murder, and was sentenced to 20 years' imprisonment. He is serving his sentence at present. Van Duivenboden's subsequent claim for damages against the Minister of Safety and Security was upheld by the Supreme Court of Appeal.

[2] Arising from the shooting incident and the incarceration of his father, E the plaintiff instituted a claim for damages against the Minister of Safety and Security. The plaintiff alleges that prior to the shooting incident on 21 October 1995 there were several incidents from which a number of police officers obtained direct knowledge of the fact that Brooks was unfit to possess a firearm. They took no steps to have him declared unfit to F possess a firearm.

[3] The plaintiff further alleges that the police officers 'owed all persons who may be prejudicially...