Minister of Safety and Security v Hlomza

JurisdictionSouth Africa
Citation2015 (1) SACR 1 (SCA)

Minister of Safety and Security v Hlomza
2015 (1) SACR 1 (SCA)

2015 (1) SACR p1


Citation

2015 (1) SACR 1 (SCA)

Case No

374/13
[2014] ZASCA 51

Court

Supreme Court of Appeal

Judge

Mpati P, Lewis JA, Mhlantla JA, Saldulker JA and Legodi AJA

Heard

March 18, 2014

Judgment

April 2, 2014

Counsel

SB Mbenenge SC (with AM da Silva) for the appellant.
N Dukada SC
for the respondent.

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 — Court relying on speculative assumptions in upholding claim — Plaintiff not having made out prima facie case — Appeal upheld. C

Headnote : Kopnota

The appellant appealed against a decision of a full court which had granted dependants' claims for loss of support in respect of the respondent and her children arising from the death of her husband, a policeman, who had committed suicide with his official firearm after shooting the respondent. D The trial court had dismissed the claim. No evidence was led at the trial and the matter was decided on the pleadings. Liability for damages in respect of the injuries suffered by the respondent was not in issue. In her particulars of claim the respondent contended that the suicide was caused by the negligence of the police in that they: 7.1 failed to seize the official firearm from the deceased despite previous reports of violence made by the respondent; E 7.2 failed to seize the official firearm from possession of the deceased despite previous requests to them by the respondent; 7.3 became aware that the deceased had threatened to shoot the (respondent) and/or manifested threats of violence towards her but failed to take steps to seize the firearm; 7.6 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 respondent; 7.8 knew that the marriage relationship between the parties had significantly deteriorated F and the family life was not stable but failed to seize the firearm; and 7.14 knew that the deceased had suicidal tendencies but failed to ensure that he was deprived of the firearm. In para 8 of the particulars its averred the police should have foreseen that the respondent would be shot and that her husband would commit suicide and that they should have prevented these acts by

2015 (1) SACR p2

seizing the firearm. The appellant denied liability in G A respect of the allegations in paras 7.8 and 7.14 and apart from admitting only that the shooting of the respondent was caused by their negligent omission, denied all the rest of the allegations. The trial court held that, although the police had admitted liability for the respondent's injuries and that the elements of the delict had been present, that did not amount to an admission that there was a causal link between their failure, to dispossess B the deceased of his firearm, and his death by suicide. On the material before the court there was also nothing to suggest that his death had been foreseeable and that they had been negligent in failing to prevent it. The full court, however, considered that the trial court had confined itself to the issue of causation and on the basis of assumptions made by the court it concluded that the death of the deceased was reasonably foreseeable and that the failure by the police to dispossess him of his firearm was therefore C negligent and that the negligent conduct was the cause of death leading to the loss of support.

Held, that the full court had erred in considering that the trial court had confined itself to the issue of causation. The admission as to negligence in respect of the respondent's injuries could not be stretched to include an admission of liability for loss of support, especially given the specific denials of liability in D this regard in the plea. Even the admission of negligence insofar as the respondent's injuries were concerned did not amount to an admission that the death by suicide of the deceased was reasonably foreseeable, and therefore neither fault nor causation had been shown in this regard. (Paragraphs [12]–[14] at 5e–i.)

Held, further, that all the assumptions made by the full court were pure E conjecture. From the fact that the deceased had first shot his wife before killing himself the full court had inferred that the suicide was predictable. It was not necessary to examine the assumptions and the conjecture as to what the police knew or should have known and should have done: These were no more than speculative assumptions and the onus was on the respondent to prove the facts giving rise to the Aquilian action from which would flow F the action for loss of support on a balance of probabilities. The respondent had not...

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1 practice notes
  • The constitutional principle of accountability : a study of contemporary South African case law
    • South Africa
    • Sabinet Southern African Public Law No. 33-1, October 2018
    • 1 October 2018
    ...September 2014). 149 Minister of Safety and Security v Madbiyi 2010 (2) SA 356 (SCA). 150 Minister of Safety and Security v Hlomza 2015 (1) SACR 1 (SCA); Dlanjwa v Minister of Safety and Security [2015] ZASCA 147 (01 October 2015). 151 2016 (1) SACR 68 (SCA). 27 Virgin Islands v Hartwell152......
1 books & journal articles
  • The constitutional principle of accountability : a study of contemporary South African case law
    • South Africa
    • Sabinet Southern African Public Law No. 33-1, October 2018
    • 1 October 2018
    ...September 2014). 149 Minister of Safety and Security v Madbiyi 2010 (2) SA 356 (SCA). 150 Minister of Safety and Security v Hlomza 2015 (1) SACR 1 (SCA); Dlanjwa v Minister of Safety and Security [2015] ZASCA 147 (01 October 2015). 151 2016 (1) SACR 68 (SCA). 27 Virgin Islands v Hartwell152......

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