Hlomza v Minister of Safety and Security and Another

JurisdictionSouth Africa
JudgePakade ADJP, D Van Zyl J and Notununu AJ
Judgment Date04 September 2012
Citation2013 (1) SACR 591 (ECM)
Docket Number1548/2007
Hearing Date04 September 2012
CounselN Dukada SC (with MN Ninana) for the appellant. SM Mbenenge SC (with AM da Silva) for the respondents.
CourtEastern Cape Division

D Van Zyl J (Pakade ADJP and Notununu AJ concurring):

E [1] The appellant's late husband, Bongani Livingstone Hlomza (the deceased), was employed by the Minister of Safety and Security (the first respondent) as a police official holding the rank of inspector. He was stationed at the Madeira police station in Mthatha where he was placed under the control and supervision of the station commissioner of the F Central police station in Mthatha (the second respondent). Tragically, on 13 February 2005 at the police camp in Mthatha, the deceased used his service firearm issued to him by the second respondent to first shoot and injure the appellant, whereafter he committed suicide by shooting himself with the same firearm.

G [2] The appellant thereafter instituted a claim against the respondents for damages in her personal and representative capacity as the 'natural mother and guardian of the deceased's four minor children'. Her claim was for payment by the first respondent in the sum of R5 080 000 (together with interest and costs), being damages suffered H by her consequent upon the injuries she sustained (claim A) and the support she and the minor children lost upon the death of the deceased (claims B and C). The amount also included a claim for funeral expenses which were incurred by the appellant in attending to the burial of the deceased (claim D).

I [3] In her summons, the appellant alleged that her injuries and the deceased's suicide were due to the negligence of the second respondent and/or certain other police officials. To this extent it is alleged in summary that, despite being aware of the fact that the deceased was ill- tempered and unfit to possess a firearm, that he assaulted and threatened the appellant with violence, including a threat to shoot her by pointing a J firearm at her, and that the magistrate of Mthatha had issued a

D Van Zyl J (Pakade ADJP and Notununu AJ concurring)

protection order against the deceased, the respondents failed to enquire A into the fitness of the deceased to continue to remain in possession of his service firearm, to institute disciplinary proceedings against him and to seize the firearm from his possession. Accordingly, the second respondent and other police officials should have foreseen the deceased's wrongful conduct and, by failing to act in the manner alleged, they acted B in breach of a legal duty owed to the appellant, the deceased and their minor children.

[4] At the trial, the first respondent admitted liability for the appellant's damages for the injuries sustained by her in the shooting incident. The trial accordingly, with the leave of the court a quo, only proceeded on the C question whether the respondents were liable for any damage or loss which the appellant and her minor children may have sustained as a result of the death of the deceased. Neither of the parties elected to present vive voce evidence. Counsel for the appellant contended that, in light of the factual admissions which the respondents made in their plea, D the appellant had established a prima facie case for the relief sought and that there was an evidentiary burden on the respondents to lead evidence in rebuttal. Counsel for the respondents in turn held the view that there was no need to place any evidence before the court, as the admissions which the appellant sought to place reliance on did not support her E claims. It was argued that the appellant had consequently not made out a case for the relief sought, and failed to discharge the onus of proving the defendants were liable for any loss or damage she may have suffered as a consequence of the death of the deceased.

[5] The court a quo was accordingly called upon, and proceeded to F determine the issues before it, solely on the basis of the factual allegations in the appellant's particulars of claim, that were admitted by the respondents in their plea. These admissions were the following:

(a)

The deceased shot and injured the appellant whereafter he turned the firearm on himself and committed suicide. G

(b)

The deceased was issued with a service firearm for use in and outside official working hours, and in the course and scope of his duties as a member of the South African Police Services.

(c)

The respondents had a legal duty to protect the appellant from being injured by the deceased, and to take all reasonable steps to prevent the deceased from injuring the appellant. H

(d)

The appellant was injured as a result of the negligent conduct of the respondents, and that such 'negligent conduct consisted in the commission of acts and/or omissions set out in sub-paragraphs 7.1, 7.3, 7.4, 7.5, 7.6, 7.7, 7.10, 7.11, 7.13, 7.16, 7.17, 7.18 and 7.19' of the appellant's particulars of claim.

(e)

The respondents ought to have foreseen the 'shooting of the plaintiff by the deceased' and ought to have prevented it by seizing the firearm from the possession of the deceased.

[6] The relevant subparagraphs of para 7 of the particulars of claim which were admitted read as follows: I

D Van Zyl J (Pakade ADJP and Notununu AJ concurring)

'7.1

A they failed to seize the official firearm from possession of the deceased despite previous reports of violence made by the Plaintiff to them against the deceased;

. . .

7.3

they became aware that the deceased had threatened to shoot the B Plaintiff and/or manifested threats of violence towards the Plaintiff but failed to take steps to seize the official firearm from possession of the deceased;

7.4

they allowed the deceased to continue possession [of] the official firearm well knowing that the deceased was unfit to possess it;

7.5

they failed to take measures to re-assess the fitness of the deceased C to possess an official firearm after having received reports of the deceased's acts of violence from the Plaintiff;

7.6

they allowed the deceased to be in possession of an official firearm even after working hours well knowing that the deceased had previously threatened to shoot the Plaintiff;

7.7

they allowed the deceased to be in possession of an official firearm D even after working hours well knowing that the deceased had adopted a violent attitude towards the Plaintiff and was ill-tempered;

. . .

7.10

they failed to institute a disciplinary inquiry against the deceased which would have rendered the deceased unfit to possess a firearm, E especially when not on duty;

7.11

they failed to constitute a Firearms Committee in terms of the provisions of Provincial Order 3/1998 upon receiving complaints of assault and pointing of a firearm from the Plaintiff and threats of violence by the deceased;

. . .

7.13

F they failed to report the violent conduct of the deceased towards the Plaintiff to higher authorities in the South African Police Service;

. . .

7.16

they failed to seize the official firearms from possession of the deceased well knowing that the Magistrate, Mthatha had granted G a Protection Order against the deceased at the instance and in favour of the Plaintiff;

7.17

they authorised or allowed the deceased to possess the official firearm when not on duty;

7.17.1

without having first investigated whether the deceased was H fit to possess a firearm; and

7.17.2

without investigating whether the deceased was having a stable family life or not;

7.18

they granted the deceased permission to possess the official firearm or allowed him to possess it when not on official duty without the prescribed official procedures having first been complied I with;

7.19

they failed to take measures to protect the Plaintiff from being injured by the deceased when they had means and ability to do so; . . . .'

[7] The respondents denied and placed in issue the following allegations J in the appellant's particulars of claim:

D Van Zyl J (Pakade ADJP and Notununu AJ concurring)

'4.9

The Second Defendant and other policemen had a legal duty — A

. . .

4.9.3

to prevent the deceased from killing himself, and

4.9.4

to take the reasonable steps to prevent the deceased from killing himself with an official firearm.' B

And that the death of the deceased was caused by the negligence of the respondents, and that they should have foreseen that he would commit suicide and should have prevented him from doing so by seizing the firearm from him.

[8] In deciding the issue of the respondents' liability for the appellant's C claims in relation to her and the minor children's loss of support, and the costs of the funeral expenses incurred by her, the court a quo confined itself to the issue of causation. On a reading of its judgment, the court's motivation, for limiting its decision in the matter to causation, seems to D be based on its view that the appellant's case effectively amounted to a contention that, once the respondents had acknowledged in their plea that they were negligent in failing to remove the deceased's firearm in circumstances where there was a legal duty to do so, it had to follow 'that each and every action the deceased thereafter committed with the E firearm which caused harm to another, must ipso facto be laid at the door of the dependants'. As this argument suggested limitless or boundless liability, something which the element of causation seeks to prevent, the court saw it as determinative of the appellant's claims. It found that on the evidence the appellant had failed to discharge the onus of establishing F that the respondents' negligence in failing to remove the deceased's service firearm from his possession was the cause of him being killed, and proceeded to make an order of absolution from the instance in respect of the appellant's claims B, C and D. It is against this order that the appellant was granted leave by the court a quo to...

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1 cases
  • Minister of Safety and Security v Hlomza
    • South Africa
    • Invalid date
    ...was accordingly upheld and the order of the trial court reinstated. Cases cited Hlomza v Minister of Safety and Security and Another 2013 (1) SACR 591 (ECM): overturned on appeal G Minister of Safety and Security and Another v Madyibi 2010 (2) SA 356 (SCA): Case Information SB Mbenenge SC (......
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