Brooks v Minister of Safety and Security

• Jurisdiction: South Africa
• Judge: Mpati P, Farlam JA, Ponnan JA, Kgomo AJA and Mhlantla AJA
• Judgment Date: 27 November 2008
• Citation: 2009 (2) SA 94 (SCA)
• Docket Number: 036/08
• Hearing Date: 11 November 2008
• Counsel: RS van Riet SC and JH Roux SC for the appellant. A Schippers SC (with R Jaga) for the respondent.
• Court: Supreme Court of Appeal

Ponnan JA:

[1] This appeal has its genesis in events that formed the subject-matter E of Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) ([2002] 3 All SA 741). Those events, which are offered as no more than a backdrop and which require no elaboration at this stage, were succinctly set out by Nugent JA (para 1) as follows:

Neil Brooks, who lived in Bothasig on the Cape Peninsula with his wife, F 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 to excess. When under its influence he was inclined to become aggressive and to abuse his family. On 21 October 1995 these various G 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 H was injured Dawn managed to escape from the garage with Aaron and they sought refuge across the road on the property of the respondent [Van Duivenboden]. 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 I 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 J

Ponnan JA

A 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] The appellant is Aaron, the son of Neil Brooks. His grievance would B appear to lie against his father, but like Mr Van Duivenboden, he has chosen instead to sue the State, represented by the respondent (the Minister of Safety and Security) for the recovery of damages. The basis of this claim, once again like that of Van Duivenboden, is that the police were negligent in failing to take the steps available to them in law to C deprive Brooks of his firearms. Had that been done, so it is postulated, the tragedy would not have occurred.

[3] The particulars of claim allege:

As a consequence of the shooting incident as aforesaid, the said Brooks was charged and convicted of various offences, including murder, as a D result of which he was given a sentence of 20 years of imprisonment, which he still serves. As a result thereof he has been rendered permanently unable to support Plaintiff as he would otherwise have done.

[4] Of the total amount claimed by the plaintiff, R168 000 lies in respect of 'loss of support from his father' and R2 400 000 in respect E of 'loss of a proper education opportunity as a result of loss of support'. That portion of the plaintiff's particulars of claim was met with an exception. Of the five grounds initially raised, the following three - without the remaining two having been specifically abandoned - were advanced in the court below: first, that no delict had been committed against the F appellant's breadwinner; second, the respondent's servants did not act wrongfully; and, third, there was no causal nexus between the omission complained of and the loss suffered. The second ground was upheld by HJ Erasmus J in the High Court (Cape Town), who issued the following order:

1

G The exception to the plaintiff's claim for loss of support and for loss of an education opportunity arising from the incarceration of his father, Neil Brooks, is upheld with costs, including the costs occasioned by the employment of two counsel.

2

The plaintiff is given leave, if so advised, to file amended particulars of claim within one month.

H The judgment is reported as Brooks v Minister of Safety and Security 2008 (2) SA 397 (C). The present appeal is with the leave of the court below.

[5] The exception raises the issue of wrongfulness, which is a sine qua non I of Aquilian liability. Negligent conduct giving rise to damage is not per se actionable. It is only actionable if the law...