Hlomza v Minister of Safety and Security and Another

• Jurisdiction: South Africa
• Citation: 2013 (1) SACR 591 (ECM)

Hlomza v Minister of Safety and Security and Another
2013 (1) SACR 591 (ECM)

2013 (1) SACR p591

Citation	2013 (1) SACR 591 (ECM)
Case No	1548/2007
Court	Eastern Cape High Court, Mthatha
Judge	Pakade ADJP, D Van Zyl J and Notununu AJ
Heard	September 4, 2012
Judgment	September 4, 2012
Counsel	N Dukada SC (with MN Ninana) for the appellant.; SM Mbenenge SC (with AM da Silva) for the respondents.

Flynote : Sleutelwoorde

Police — Liability of — Use of firearm by off-duty policeman who shot his wife and killed himself — Police authorities aware that he was emotionally unstable and violent — His death not too remotely foreseeable — Police held liable for dependant's claim for allowing him to keep firearm. C

Headnote : Kopnota

The appellant was the widow of a policeman who had shot and injured her with his service firearm and then shot and killed himself. The deceased was off duty at the time. She instituted a claim for damages against the respondents and alleged that they were negligent, in that they allowed him to keep his D firearm, despite the fact that they knew that he was ill-tempered and unfit to possess a firearm, that he had assaulted and threatened her with violence, including a threat to shoot her by pointing a firearm at her, and that the local magistrate had issued a protection order against him. She alleged that the respondents had failed to enquire 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 E possession. Accordingly, she alleged, the second respondent and other police officials should have foreseen the deceased's wrongful conduct and, by failing to act in that respect, they had acted in breach of a legal duty owed to her, the deceased and their minor children. The court found that on the evidence the appellant had failed to discharge the onus of establishing that the respondents' negligence in failing to remove the deceased's service firearm from his possession was the cause of him being killed, and F proceeded to make an order of absolution from the instance on the claim by the appellant for loss of support. On appeal,

Held, that a police official was not permitted to be in possession of a state-owned firearm when he or she was not on duty. In terms of Provincial Order 3 of 1998, the provisions of which were admitted by the respondents in their G plea, a member of the police services could apply, by following the prescribed procedure, to be given authorisation to remain in possession of his state-owned firearm when not on duty, if he or she believed that his or her work or personal situation justified it. In deciding whether or not to grant such an application by a member, an evaluation committee, which was established at every station or unit exclusively for that purpose, was tasked to consider a number of criteria. Relevant to the present enquiry was H the stability of the official's family life, whether he had a history of alcohol or substance abuse, and whether he had 'a history of depression and anxiety'. From a reading of the stipulated criteria, it was evident that it did not only relate to a determination of whether there existed a need for the official concerned to perform police duties after work hours, or whether there existed a real threat to his personal safety and that of his family by I virtue of his employment, but also whether his possession of his service firearm after hours might pose a threat to himself and his family. (Paragraphs [23] and [24] at 604d – 605c.)

Held, further, as to whether there was a legal duty on the respondents to prevent the shooting, it was evident that the respondents were in a very close or proximate relationship with the deceased by virtue of his employment and J

2013 (1) SACR p592

A the position occupied by him. The imposition of a legal duty in these circumstances would therefore not place an additional burden on the police, or have the potential to disrupt the functioning of the police, or require the provision of additional resources. (Paragraph [25] at 605d – 606b.)

Held, further, that the recognition of liability in the circumstances of the present B matter would not, as a policy consideration, lead to a limitless number of claimants who were likely to bring a multiplicity of actions against the respondents. Although suicide may in general not be regarded as a usual occurrence, it was, in the context of a troubled and fractured domestic relationship characterised by family violence, not so uncommon and C unpredictable as to be outside the bounds of what may be reasonably foreseeable. It followed that the respondents were accordingly obliged to take such precautions as were reasonable to guard against that eventuality. (Paragraphs [26] and [30] at 606c – d and 608c – g.)

Held, further, as to the question whether the death of the deceased was too remote to be causally linked to the respondents' negligence, the admitted D facts raised, as a probability, that positive conduct on the part of the respondents would not only have prevented injury to the appellant, but would also have prevented the death of the deceased. On the available evidence there accordingly existed prima facie proof of factual causation. The fear, that a finding of liability in the present matter may result in the imposition of liability in a wide range of similar situations, or may give rise to a limitless number of claimants who are likely to bring a multiplicity of E actions, was not justified. This was not the type of case where liability could not be imposed without it also extending to a number of other cases. Both the existence of a legal duty and legal causation in the present matter were largely fact- and circumstance-based. Establishing a predictable or uniform outcome in other cases falling within the same 'category' was for this reason F not a real danger. If the broader social interest of the public at large is considered, the imposition of liability in the present matter would not, as stated earlier, disrupt or place an undue burden on police resources. It was also highly unlikely that large numbers of breadwinners would now, as a result of a finding of liability in this case, proceed to take their own lives simply to benefit their dependants. Liability would in each case further be G limited or controlled by the elements of wrongfulness and fault, particularly with reference to considerations such as foreseeability, proximity and control. The appeal was accordingly upheld. (Paragraph [44] at 613h/i – 614f.)

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AA Mutual Insurance Association Ltd v Biddulph and Another 1976 (1) SA 725 (A): referred to

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Delphisure Group Insurance Brokers Cape (Pty) Ltd v Dippenaar and Others J 2010 (5) SA 499 (SCA): referred to

2013 (1) SACR p593

Ebrahim v Minister of Law and Order 1993 (2) SA 559 (T): referred to A

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

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

Kruger v Carlton Paper of SA (Pty) Ltd 2002 (2) SA 335 (SCA): referred to

Kruger v Coetzee 1966 (2) SA 428 (A): applied C

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Mankebe NO v AA Mutual Insurance Association Ltd 1986 (2) SA 196 (D): applied

mCubed International (Pty) Ltd and Another v Singer and Others NNO D 2009 (4) SA 471 (SCA): referred to

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Minister of Police v Skosana 1977 (1) SA 31 (A): applied

Minister of Safety and Security and Another v Carmichele 2004 (3) SA 305 (SCA) (2004 (2) BCLR 133; [2003] 4 All SA 565): applied

Minister of Safety and Security and Another v Madyibi 2010 (2) SA 356 (SCA): E compared

Minister of Safety and Security v Hamilton 2004 (2) SA 216 (SCA) ([2003] 4 All SA 117): referred to

Minister of Safety and Security v Rudman 2005 (2) SA 16 (SCA) ([2004] 3 All SA 667): referred to

Minister of Safety and Security v Van Duivenboden F 2002 (6) SA 431 (SCA) ([2002] 3 All SA 741): applied

Minister van Veiligheid en Sekuriteit v Geldenhuys 2004 (1) SA 515 (SCA) ([2003] 4 All SA 330): referred to

Ngubane v South African Transport Services 1991 (1) SA 756 (A): referred to

OK Bazaars (1929) Ltd v Standard Bank of South Africa Ltd 2002 (3) SA 688 (SCA): referred to G

Premier of the Western Cape Province v Loots NO [2011] ZASCA 32: referred to

Premier, Western Cape v Faircape Property Developers (Pty) Ltd 2003 (6) SA 13 (SCA) ([2003] 2 All SA 465): referred to

Road Accident Fund v Sauls 2002 (2) SA 55 (SCA): applied H

Rondalia Assurance Corporation of South Africa Ltd v Britz 1976 (3) SA 243 (T): applied

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

Smit v Abrahams 1994 (4) SA 1 (A): referred to

Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A): I referred...