Minister of Safety and Security v Dlakavu

• Jurisdiction: South Africa
• Court: Eastern Cape Division
• Judge: Petse ADJP
• Judgment Date: 30 October 2008
• Citation: 2009 JDR 1399 (ECM)
• Hearing Date: 04 September 2008
• Docket Number: 1034/2004

Petse ADJP:

[1] There are two applications that served before me simultaneously in relation to this matter on 4 September 2008.

[2] The first one is an application for leave to appeal by the Minister of Safety and Security and Another against part of my judgment delivered on 24 April 2008. The other one is an application by Ms FDM which, although not readily apparent therefrom it can nevertheless be deduced from the content thereof, is for leave to execute the judgment sought to be appealed against by the applicants in the first application in so far as it relates to the costs of suit awarded in her favour.

2009 JDR 1399 p3

Petse ADJP

[3] I have deemed it convenient to deal with both applications in a single judgment given that both applications were, as I have already alluded to above, argued simultaneously.

[4] I shall for the sake of convenience use the same titles as were assigned to the parties at the trial.

[5] It is my judgment that it would be profitable and indeed conduce to a better understanding of the vexed question that I am required to unravel in the application for leave to appeal if I were to quote liberally, albeit to the extent necessary, portions of the plaintiff s particulars of claim that are germane to the legal point now sought to be argued by the defendants (so late in the day if I may say so) in the event that leave to appeal is granted. The following is alleged in the plaintiff's particulars of claim:

"The plaintiff is FDM who:

1.1

is an adult female;

1.2

is an unemployed widow;

1.3

was born on 11 July 1967;

1.4

resides at Ngqeleni district; and

1.5

sues herein in her personal capacity and her capacity as a natural mother and guardian of the following children, namely:

2009 JDR 1399 p4

Petse ADJP

1.5.1

ZM, born on 14 November 1991;

1.5.2

AM, born on 7 July 1994;

1.5.3

NM, born on 17 March 1990; and

1.5.4

SM, born on 3 February 1999.

(hereinafter referred to as "the minor children").

2.

The first defendant is Minister of Safety and Security for the Government of the Republic of South Africa whose address for purpose of service is care of the State Attorney, Oxford Street, East London.

3.

The second defendant is Superintendent Xolisa Dlakavu, who;

3.1

is an adult male;

3.2

is a policeman in the South African Police Service; and

3.3

is a Station Commissioner for Ngqeleni Police Station, Ngqeleni district.

4.

At all times material hereto:

2009 JDR 1399 p5

Petse ADJP

4.1

the plaintiff was married to a certain PM (hereinafter referred to as "the deceased");

4.2

the deceased was the natural father of the minor children;

4.3

the deceased was employed by the first defendant as a Sergeant in the South African Police Service stationed at Ngqeleni Police Station, Ngqeleni district;

4.4

the second defendant was employed by the first defendant as a Superintendent in the South African Police Service;

4.5

the second defendant was in charge of Ngqeleni Police Station and exercising powers over all the policemen who were attached to N gqeleni Police Station.

5.

On 21 January 2006, and at Ngqeleni Village, Ngqeleni district, the deceased:

5.1

shot the plaintiff on the neck with a firearm;

5.2

thereafter shot and killed himself with a firearm.

2009 JDR 1399 p6

Petse ADJP

6.

The firearm used by the deceased in shooting the plaintiff and killing himself was:

6.1

owned by the first defendant; and

6.2

under the control of the second defendant.

7.

The shooting of plaintiff and commission of suicide by the deceased was caused by negligence of the second defendant in the following respects:

7.1

he failed to seize the official firearm from possession of the deceased despite previous repeated requests by the plaintiff and other members of the South African Police Service to do so;

7.2

he became aware that the deceased had previously repeatedly threatened to shoot the plaintiff and/or manifested threats of violence towards plaintiff and other members of the South African Police Service but failed to take steps;

2009 JDR 1399 p7

Petse ADJP

7.3

he allowed the deceased to continue using the official firearm well knowing that the deceased was unfit to possess a firearm;

7.4

he failed to take measures to re-assess the fitness of the deceased to possess an official firearm when not on duty;

7.5

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

7.6

he knew that the marriage relationship between the plaintiff and deceased had significantly deteriorated and the family life of the deceased was not stable;

7.7

he knew that the deceased was suffering from depression and alcoholic problems;

7.8

he failed to institute a disciplinary inquiry against the deceased upon receiving complaints from the plaintiff of pointing a firearm and threats of violence by the deceased;

7.9

he failed to ensure that criminal charges were preferred against the deceased for pointing the plaintiff with a firearm;

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Petse ADJP

7.10

he failed to take measures to protect the plaintiff from being injured by the deceased when he had means and ability to do so;

7.11

he failed to report the violent conduct of the deceased to higher authorities in the South African Police Service;

7.12

he knew that the deceased had suicidal tendencies, but failed to ensure that the deceased was deprived of possession of official firearm.

8.

Alternatively, the shooting of plaintiff and commission of suicide by the deceased was caused by negligence of the policemen, whose full names and further particulars are unknown to the plaintiff, in one or more of the ways set out in paragraph 7 hereof.

9.

9.1

The second defendant and/or policemen referred to in paragraph 8 hereof had a legal duty;

9.1.1

to protect the plaintiff from being injured by the deceased; and

9.1.2

to prevent the deceased from killing himself with an official firearm;

2009 JDR 1399 p9

Petse ADJP

9.2

The second defendant and/or policemen should have foreseen;

9.2.1

the shooting of plaintiff and commission of suicide by the deceased; and

9.2.2

the loss of support by the minor children as a result of commission of suicide by the deceased.

9.3

the second defendant and/or policemen breached the legal duty owed to the plaintiff and minor children in one or more of the ways set out in paragraph 7 hereof.

10.

CLAIM A

Plaintiff as a result of being shot at by deceased at a close (sic) range suffered a serious bullet wound on the neck which resulted in plaintiff being operated on and to a very large extent damaged the vocal part of her body.

11.

Consequently plaintiff had to be hospitalized for more than three (3) months at St Mary's Hospital Umtata.

2009 JDR 1399 p10

Petse ADJP

12.

As a result of the second defendant omission which resulted to (sic) the shooting of plaintiff by the deceased and sustenance of a bullet wound as detailed in paragraph 10 above, plaintiff suffered the following damages,

12.1	Pain and suffering for more than a year subjected to, a number of further operations and observations (temporal)	=	R100 000.00
12.2	Discomfort for a period of eight (8) months using a breathing cube (sic) including hospitalization	=	R70 000.00
12.3	Past hospital expenses as per Medical bills presented	=	R 54 106.35
12.4	Estimated future medical expenses as per doctor's assessment	=	R100 000.00

2009 JDR 1399 p11

Petse ADJP

CLAIM B

Plaintiff is a qualified teacher by profession which profession by its very nature requires an ability to speak and communicate clearly.

14.

From the date of the shooting incident plaintiff is not able to speak and/or communicate clearly and as such is not employable as a teacher.

15.

Plaintiff has therefore suffered damages in the form of a loss of earning capacity which is estimated at R1 000 000.00 (One Million Rands) being fair and reasonable compensation which she holds first defendant vicariously liable for.

16.

CLAIM C

As a result of the death of the plaintiff's husband occasioned by second defendant's omission plaintiff suffered loss of support in the sum of three Million Rand (R3 000 000.00) being fair and reasonable

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Petse ADJP

compensation in respect of herself, four (4) minor kids (sic) fathered by her late husband being divisible as follows:-

Plaintiff	=	R600 000.00
ZM	=	R600 000.00 :Born on the 14th November 1991
AM	=	R600 000.00 : Born on the 7th July 1994
NM	=	R600 000.00 :Born on the 17th March 1990
SM	=	R600 000.00 : Born on the 3rd February 1999

17.

First defendant is therefore vicariously liable to plaintiff in the total sum of R4 324 106.35 (Four Million Three Hundred and Twenty Four Thousand One Hundred and Six Rands Thirty Five Cents)

18.

2009 JDR 1399 p13

Petse ADJP

Plaintiff had complied with requirements of Act 40 of 2002.

19.

Despite demand first defendant refuses / fails or neglects to pay the said sum of money.

WHEREFORE plaintiff prays for judgment in the following terms:

1.

………………………………………………………………….. .

2.

…………………………………………………………… .

3.

…………………………………………………………… .

4.

………………………………………………………………….. ."

[6] I consider it timely at this juncture to mention that at the commencement of the trial plaintiff's counsel handed up in Court by agreement with the defendants' legal team the plaintiff's bundle of documents which, inter alia, incorporated a copy of Provincial Order No 3 of 1998 issued by the Police Provincial Commissioner of the Province of the Eastern Cape ("the...