Minister of Safety and Security v Van Duivenboden

• Jurisdiction: South Africa
• Citation: 2002 (6) SA 431 (SCA)

Minister of Safety and Security v Van Duivenboden
2002 (6) SA 431 (SCA)

2002 (6) SA p431

Citation	2002 (6) SA 431 (SCA)
Case No	209/2001
Court	Supreme Court of Appeal
Judge	Howie JA, Marais JA, Nugent JA, Heher AJA and Lewis AJA
Heard	May 17, 2002
Judgment	August 22, 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.

Flynote : Sleutelwoorde B

Negligence — Liability for — Wrongfulness — Omission — Whether negligent omission to be regarded as unlawful — Issue is one of legal policy, to be answered against background of norms and values of particular society in which principle sought to be applied — Legal convictions of South African community necessarily informed by norms C and values embodied in Constitution of the Republic of South Africa Act 108 of 1996 — Norms and values inconsistent with Constitution having no legal validity — Constitution thus a system of objective, normative values for legal purposes.

Negligence — Liability for — Wrongfulness — Omission — Whether negligent D omission to be regarded as unlawful — Omission by State to act when constitutional rights threatened — Positive (constitutional) duty imposed by s 7 of Constitution of the Republic of South Africa Act 108 of 1996 on State to act in protection of rights in Bill of Rights — Section 41(1) expressly demands accountable government from all organs of State — Where State, represented by persons performing E functions on its behalf, acts in conflict with its constitutional duty to protect constitutional rights, norm of accountability necessarily important in determining whether legal duty should be recognised in any particular case — Norm of accountability ordinarily demanding recognition of private law legal duty, enforceable by action for damages, where State's failure to fulfil constitutional duties F occurring in circumstances offering no effective remedy other than action for damages — Police officers in possession of information warranting person being declared unfit to possess firearms — Continued possession of firearms by such person posing threat to constitutionally protected rights to human dignity, to life and to personal security — Constitutional norm of G

2002 (6) SA p432

accountability requiring recognition of legal duty, enforceable by action for damages, for police to take A reasonable steps to act on information to avoid harm occurring.

Negligence — Liability for — Causation — Factual causation — Plaintiff to establish that wrongful conduct a probable cause of loss — Requires sensible retrospective analysis of what would probably have occurred if hypothetical course of lawful conduct pursued, based on evidence and on what could be expected to occur in ordinary course of human affairs. B

Headnote : Kopnota

Negligence is not inherently unlawful. It is unlawful, and thus actionable, only if it occurs in circumstances that the law recognises as making it unlawful. Unlike the case of a positive act causing physical harm, which is presumed to be unlawful, a negligent omission C is unlawful only if it occurs in circumstances that the law regards as sufficient to give rise to a legal duty to avoid negligently causing harm. Where a legal duty is recognised by the law, an omission will attract liability only if the omission was also culpable according to the separate test of whether a reasonable person in the position of the defendant would not only have foreseen the harm but would also have D acted to avert it. (Paragraph [12] at 441E - 442A.) A negligent omission is regarded as unlawful when the circumstances of the case are such that the omission not only evokes moral indignation but the 'legal convictions of the community' require that it should be regarded as unlawful. (Paragraph [13] at 442B/C - C.) The question to be determined is one of legal policy, which must of necessity be answered against the background of the norms and values of the E particular society in which the principle is sought to be applied. (Paragraph [16] at 444B/C - C/D.) In South Africa the 'legal convictions of the community' must necessarily be informed by the norms and values of South African society as they have been embodied in the Constitution of the Republic of South Africa Act 108 of 1996. The fact that no norms or values inconsistent with the Constitution can F have legal validity makes the Constitution a system of objective, normative values for legal purposes. (Paragraph [17] at 444E/F - F/G.)

What is called for when determining whether the law should recognise the existence of a legal duty in any particular circumstances is a balancing against one another of identifiable norms. While private citizens might be entitled to remain passive when the constitutional rights of other citizens are threatened, the State has a positive G constitutional duty, imposed by s 7 of the Constitution, to act in protection of the rights in the Bill of Rights. The existence of that duty necessarily implies accountability and s 41(1) expressly demands, inter alia, that all spheres of government and all organs of State 'provide effective, transparent, accountable . . . government'. Where the State, as represented by the persons who perform functions on its behalf, acts in conflict with its H constitutional duty to protect rights in the Bill of Rights, the norm of accountability must of necessity assume an important role in determining whether a legal duty ought to be recognised in any particular case. (Paragraph [21] at 446F - G/H, read with para [20] at 446B/C - D/E.)

While the norm of accountability need not always translate constitutional duties into private law duties enforceable by an action for damages because there are other remedies available for holding the I State to account, where the State's failure to fulfill its constitutional duties occurs in circumstances that offer no effective remedy other than an action for damages, the norm of accountability will ordinarily demand the recognition of a legal duty unless there are other considerations affecting the public interest outweighing that norm. (Paragraph [21] at 446G/H - H and 447B/C - C/D.) J

2002 (6) SA p433

Section 11 of the Arms and Ammunition Act 75 of 1969 empowers members of the Police Service to deprive a person of firearms in certain A circumstances. The grounds upon which someone may be declared unfit to possess firearms include that the person 'has threatened or expressed the intention to kill or injure himself or any other person by means of an arm' and that the person's 'possession of an arm is not in the interest of . . . any other person as a result of his mental condition, . . . or his dependence on intoxicating liquor'. B

One B owned two licensed firearms. He habitually consumed alcohol to excess and, while under its influence, was inclined to become aggressive and to abuse his family. On 25 October 1995 a domestic squabble between B and his wife developed after B had consumed excessive amounts of alcohol. B loaded both his firearms, strapped extra ammunition round his waist and shot at his wife, who escaped with C their young son across the road to the respondent's property. After shooting and killing their daughter, B pursued his wife and killed her. He also shot the respondent in the ankle and shoulder. The police had been in possession of information which reflected on B's fitness to possess firearms long before the respondent had been shot. While some information had emanated from B's wife, members of the police had had direct information as a result of two occasions D on which they had been summoned to defuse B's threats to shoot his wife and family. The second of these occasions, on 27 September 1994, had necessitated the eventual presence of approximately a dozen police officers, including members of the Internal Stability Unit, after B had locked himself into the house, threatening to shoot anyone approaching. When the police entered the house after a siege lasting E many hours, they found that B had lined up at least 20 boxes of spare ammunition and had reduced the house to a shambles.

The respondent sought to recover from the Minister of Safety and Security the damages he had sustained as a result of his injuries on the grounds that, notwithstanding that a number of police officers had known, from the events of 27 September 1994, that B was unfit to possess firearms, they negligently had failed to take steps available F to them in terms of s 11 of the Act to deprive him of his firearms. As a result of that failure B had still been in possession of his firearms on 25 October 1995. The respondent's claim was dismissed by a single Judge but allowed on appeal to a Full Bench. In an appeal by the Minister,

Held, that it had been known to a number of police officers, more than a year before the respondent had been shot, that while B G was in a drunken state he had threatened to shoot himself and any other person who attempted to intervene, including the police. That alone had warranted B's being declared unfit to possess firearms for a period of not less than two years. The initiation of the requisite process would have required no more than for any of the police officers who had been present to reduce the information to writing under oath and to forward H the statement to the person responsible for holding s 11 enquiries. (Paragraph [11] at 441B - C/D.)

Held, further that where, as in this instance, the constitutionally protected rights to human dignity, to life and to personal security had been placed in peril, the State, represented by its officials, had a constitutional duty to protect them. While accepting without deciding that there might be aspects of police I activity in respect of...