Minister of Safety and Security v Van Duivenboden

• Jurisdiction: South Africa
• Judge: Howie JA, Marais JA, Nugent JA, Heher AJA and Lewis AJA
• Judgment Date: 22 August 2002
• Citation: 2002 (6) SA 431 (SCA)
• Docket Number: 209/2001
• Hearing Date: 17 May 2002
• Counsel: J J Gauntlett SC (with him R Jaga) for the appellant (the heads of argument were drawn by A J Smit SC and R Jaga). R S van Riet SC for the respondent.
• Court: Supreme Court of Appeal

Nugent JA:

[1] Neil Brooks, who lived in Bothasig on the Cape Peninsula with his wife, Dawn, and their two children, Nicole and Aaron, was fond B of firearms. He owned a 9 mm 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 C consumed to excess. When under its influence he was inclined to become aggressive and to abuse his family. On 21 October 1995 these various 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 D 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 was injured Dawn managed to escape from the garage with Aaron and they sought refuge across the road on the property of the respondent. Brooks then turned on eleven-year-old Nicole, who remained trapped in the garage, and he shot and killed her before E following after Dawn. Meanwhile, Aaron, who was in possession of Dawn's revolver, had called on the respondent for assistance and had 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, F 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 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 G police arrived and Brooks was arrested. He is now serving a long term of imprisonment for the crimes he committed that day.

[2] No doubt the respondent's grievance lies primarily against Brooks but he chose instead to sue the State, represented by the appellant, for recovery of the damages that he sustained as a H result of his injuries. The basis of his claim, put simply, is that the police were negligent in failing to take the steps that were available in law to deprive Brooks of his firearms before the tragedy occurred, notwithstanding that there were grounds for doing so, and that their negligence was a cause of the respondent being shot. The action was I tried in the High Court at Cape Town before Desai J who ordered, by agreement, that the question of liability should be decided separately from the question of damages. At the conclusion of the trial on that issue the respondent's claim was dismissed with costs but on appeal to the Full Court that decision was J

Nugent JA

reversed (Davis and Louw JJ, Moosa J dissenting). This further appeal comes before us with the A special leave of this Court.

[3] The police have the power, in certain circumstances, to deprive a person of firearms. That power is conferred upon the Commissioner of Police by s 11 of the Act and has been delegated by the Commissioner to other senior police officers. Because of the centrality of s 11 to the issues that arise in this appeal it is worth B setting out its terms in full. With effect from 18 September 1992 (when the Arms and Ammunition Acts Amendment Act 117 of 1992 came into effect) the section provided as follows:

(1) If the Commissioner is of the opinion that on the ground of information contained in a statement made under oath, other than such a C statement made by the person against whom action in terms of this section is contemplated, there is reason to believe that any person is a person -

(a)

. . .

(b)

who has threatened or expressed the intention to kill or injure himself or any other person by means of an arm; or D

(c)

whose possession of an arm is not in the interest of that person or any other person as a result of his mental condition, his inclination to violence, whether an arm was used in the violence or not, or his dependence on intoxicating liquor or a drug which has a narcotic effect; or

(d)

who, while in lawful possession of an arm, failed to take reasonable steps for the safekeeping of such arm, E

he may, by notice in writing delivered or tendered to such person by a policeman, call upon such person to appear before the Commissioner at such time and place as may be specified in the notice, in order to advance reasons why such person shall not be declared unfit to possess any arm on any ground aforesaid so specified.

(2)(a) The Commissioner may, if he has reason to believe that the person to whom the said notice has been addressed, has an arm F in his possession, issue a warrant for the search and seizure thereof.

(b) The provisions of s 21(2), (3) and (4) of the Criminal Procedure Act 51 of 1977 shall mutatis mutandis apply to a warrant issued under para (a), and any arm seized in pursuance of such a warrant shall be handed over to the holder of an office in the South African Police as the Commissioner may designate. G

(3) Any person appearing in pursuance of a notice issued under ss (1) shall be entitled -

(a)

to be represented by an advocate or an attorney;

(b)

to request the Commissioner to call, in the manner referred to in ss (1), upon any person who made a statement referred to in that subsection, also to appear before the Commissioner; H

(c)

to examine the person who has been called upon in terms of para (b) to appear, under oath or affirmation taken by the Commissioner, or cause him to be so examined through any such advocate or attorney, to such extent as the Commissioner with a view to a fair and just investigation may allow.

(4) Upon proof that the notice referred to in ss (1) was duly delivered or tendered to the person to whom it was addressed, the I Commissioner may at any time subsequent to the time specified in the notice, whether or not such person complies with the notice, declare such person to be unfit to possess any arm at any time or during a specified period of not less than two years, if the Commissioner, having regard to -

(a)

any reasons, submissions or evidence advanced under oath by or on behalf of the said person; and J

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(b)

any other sworn information or evidence at his disposal, A

is satisfied that such person is a person contemplated in para (b), (c) or (d) of ss (1).

(5) . . .

(5A) The Commissioner may in his discretion suspend the operation of the declaration referred to in ss (4) for a period not exceeding two years on any condition which the Commissioner may deem fit. B

(6) The Commissioner shall by notice in writing sent by post or delivered to him inform any person in respect of whom a declaration has been made under ss (4), of the tenor of and reason for the declaration.'

[4] Long before the respondent was shot various police officers were in possession of information that reflected upon Brooks's fitness to be in possession of firearms. In some cases that C information emanated from Dawn but in other cases members of the police had direct knowledge of the facts as a result of two incidents.

[5] The first incident occurred some years earlier at the premises of a business that Brooks and Dawn operated in Mowbray. Brooks was under the influence of alcohol when a heated argument took place. D Brooks drew his pistol and started approaching Dawn but desisted from doing anything further when she produced her own revolver from her purse. Dawn summoned the police and two officers from Mowbray police station arrived. The police officers confiscated both the firearms but allowed Brooks and Dawn to retrieve them the following day. E

[6] The second incident occurred at the family home in Bothasig on 27 September 1994. During the course of the early evening Cecil Connor, the father of Dawn, received a distressed telephone call from his daughter. She reported to Connor that she and the children had fled to the house of a friend because Brooks had threatened to kill them. F Connor went to investigate and found that Brooks had locked himself inside the house, whereupon Connor left and telephoned the police. A reservist from the Milnerton police station responded to the call by going to the house in the company of a colleague. He approached the house and found a note propped against a window in which Brooks expressed the intention of taking his own life. Propped against another G window was another note in which Brooks warned that he had firearms and ammunition and would shoot anyone who approached the house, including the police. When the reservist rapped on the window and called out he heard a firearm being cocked within the house. He identified himself as a police officer, whereupon Brooks called out that unless the reservist H removed himself Brooks would shoot him. The reservist returned to the police vehicle and radioed for assistance and a more senior police officer arrived. After being told what had occurred she called in the assistance of a specialist team of police officers who were trained to defuse such situations and members of that team arrived. Amongst them was Superintendent Hefer. Members of the Internal Stability Unit also I arrived and ultimately there must have been a dozen or so police officers on the scene.

[7] Meanwhile Connor and Dawn had returned and they approached the house in the company of a number of police officers. As they J

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approached the bedroom window Brooks shouted from inside that he would A shoot anyone who attempted to enter the house and they withdrew. In the course of the evening Hefer spoke to Dawn, who...