Minister of Safety and Security v Hamilton

• Jurisdiction: South Africa
• Judge: Howie P, Mthiyane JA, Conradie JA, Heher JA and Van Heerden AJA
• Judgment Date: 26 September 2003
• Docket Number: 457/2002
• Hearing Date: 21 August 2003
• Counsel: J A le Roux SC (with him R T Williams) for the appellant. J J Gauntlett SC (with him M Donen SC) for the respondent.
• Court: Supreme Court of Appeal

Van Heerden AJA:

[1] This appeal concerns primarily the question whether the police authorities charged with considering, recommending and issuing firearm licences are under a legal duty (actionable by a claim for delictual J

Van Heerden AJA

damages) to investigate information furnished to them by the applicant, in order properly to assess such applicant's suitability A and fitness to possess a firearm.

[2] On 29 September 1993 and at Stellenbosch Police Station, one Erna Lochiel McArdell (McArdell) applied in terms of s 3(1) of the Arms and Ammunition Act 75 of 1969 for a licence to B possess a .38 Special Rossi revolver (the revolver). At the time of making the application, McArdell was a 45-year-old unmarried BCom graduate employed as an agricultural data metrician at Infruitec, Stellenbosch. The stated purpose for which she required the revolver was self-protection - she lived alone and frequently travelled to Cape Town to visit her elderly mother. The application was C favourably considered by the relevant members of the South African Police Force and, on 14 October 1993, the Commissioner of Police (the Commissioner) issued the licence to McArdell.

[3] About 10 months later, on 6 August 1994, McArdell shot the respondent (a 22-year-old student) in the back with the D revolver. The shooting followed an altercation about a parking bay in which McArdell confronted the respondent and his then girlfriend, Tarryn Weber (Weber). The incident took place in the parking area of East Lynne Flats, Stellenbosch, where both McArdell and Weber resided at that time. As a result of being shot, the respondent sustained a spinal injury and is now a tetraplegic and is permanently wheelchair-bound. E

[4] In July 1997, the respondent instituted proceedings in the Cape of Good Hope High Court (the High Court), claiming delictual damages from the Minister of Safety and Security, the appellant. McArdell's psychologist at the time of the shooting, Dr Judora Spangenberg (Spangenberg), was initially joined as the second F defendant, but the action against her was withdrawn. The basis of the respondent's claim against the appellant was that the police members who considered and then recommended McArdell's application for a licence to possess a firearm, as well as the Commissioner of Police who issued the licence to her, owed members of the public (including G the respondent) a legal duty to exercise reasonable care in considering, investigating, recommending and ultimately granting McArdell's application for a firearm licence; that they negligently breached this duty; and that their negligence was a cause of the shooting and consequent injuries inflicted on the respondent. The respondent alleged, more particularly, that the relevant police H members and the Commissioner were under a legal duty to take reasonable steps to investigate whether McArdell was competent and fit to possess a firearm and that they negligently failed to comply with this duty, inter alia by failing to investigate McArdell's 'antecedents, character, physical and temperamental fitness', as referred to in para 10 of form SAP 286. The origin and significance of I this form will be dealt with below.

[5] By agreement between the parties, the question of liability was separated from that of the quantum of damages and the trial Court was asked to deal only with the former issue. In terms of a Rule 37 minute filed before the commencement of the trial, it was recorded that: J

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'In order to curtail the calling of witnesses the parties agree to the agreed facts annexed hereto contained in the document headed A ''Agreed facts''. No evidence will be required in proof thereof and no adverse inferences will be drawn from the failure of either party to call a witness or witnesses in regard to the subject-matter referred to in the Agreed facts. (In particular police officials Loubser, Groenewald and defendant's servants in Pretoria are contemplated.)'

[6] The 'Agreed facts' referred to above are as follows: B

'1.

On 29 September 1993 at Stellenbosch Police Station Erna Lochiel McArdell (McArdell) submitted an application for a licence to possess a .38 Special Rossi revolver (the revolver) with manufacturer's serial No AA193477 in terms of s 3(1) of the Arms and Ammunitions Act 75 of 1969 (the Act). C

2.

McArdell handed in a form SAP 271E, which form was prescribed by reg 2(1) of the Regulations promulgated in Government Notice R1474 of Regulation Gazette 1486 of 27 August 1971.

3.

A copy of the form SAP 271E as it was completed is annexed hereto marked ''A.1''.

4.

Two servants of the defendant at the Stellenbosch Police Station, namely Warrant Officer Loubser and Lieutenant C J Groenewald D dealt with the application.

5.

Sections A and B of the form SAP 271E were completed by the previous owner of the firearm, viz Fruit Games CC, trading as Cape Handgun Range, Groote Kerk Building, Adderley Street, who were (sic) in lawful possession of the revolver. E

6.

Section C of form SAP 271E was completed by Warrant Officer E A S Loubser (of the SAP, Stellenbosch), who inserted the details in accordance with the information supplied by McArdell.

7.

McArdell signed opposite the answer in para C4 of the form SAP 271E and at the bottom of the application, after her attention had been F drawn to the note in para C13 and she had confirmed that the information was true and correct as provided therein.

8.

Warrant Officer Loubser and Lieutenant Groenewald thereafter completed a form SAP 286 in accordance with paras 9 - 14 hereafter. A copy of the completed form SAP 286 is annexed hereto marked ''A.2''.

9.

Warrant Officer Loubser completed paras 1 to 12 thereof and inserted the address appearing at the foot of p 2. G

10.

Lieutenant Groenewald completed para 13 thereof.

11.

Warrant Officer Loubser and Lieutenant Groenewald made a recommendation as contained in paras 12 and 13 respectively of the form SAP 286.

12.

When the application was considered for purposes of their recommendation at the Stellenbosch Police Station and recommended by them, Warrant Officer Loubser and Lieutenant Groenewald relied upon the H information contained in form SAP 271E, form SAP 286 and a supplement to form 271E, a notification headed ''Kennisgewing'' and a form SAP 91A (a fingerprint enquiry).

13.

The three last-mentioned documents are annexed hereto marked ''A.3'', ''A.4'' and ''A.5'' respectively. I

14.

In addition to the information contained in the aforementioned documents Warrant Officer Loubser relied on her personal observations of the applicant during her interview at the stage of completion of the said forms.

15.

When the Commissioner issued a licence to McArdell he relied on the contents of the documents referred to in annexures A.1 - A.5 and the result of a fingerprint enquiry pursuant to completion of form SAP 91A. J

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16.

Insofar as information relating to McArdell's mental stability was concerned, Warrant Officer Loubser, Lieutenant Groenewald, the A Commissioner and every one of the defendant's servants involved in the process considered the reply given by McArdell pursuant to the reading of para 10 on form SAP 286 to McArdell during her interview with Warrant Officer Loubser.

16.1

Paragraph 10 reads: B

''10

Opmerkings met betrekking tot die applikant se verlede, karakter, liggaamlike en temperamentele geskiktheid, kennis van wapens, ensovoorts . . .

Remarks as to the applicant's antecedents, character, physical and temperamental fitness, knowledge of arms, et cetera. If the applicant is not a South African citizen, . . .'' C

16.2

McArdell's reply was to the effect that there was nothing that she could report in regard to her antecedents, character and temperamental fitness, knowledge of arms, et cetera, which could negatively affect her application. In the premises no further steps to test the veracity of the information and/or allegations were considered necessary by Loubser and Groenewald. D

17.

McArdell was requested by Warrant Officer Loubser, in accordance with para C13 of form SAP 271E to declare that the information furnished was true and correct, which she did. In addition she was informed that it would be an offence to knowingly make a false statement.

18.

The only further steps that were taken by first defendant's servants and/or the Commissioner to test the veracity E of the representations and allegations made by McArdell in applying for a firearm licence were a fingerprint enquiry done at the Criminal Records Centre in Pretoria to establish whether she had any previous convictions according to their records.

19.

Prior to recommending and issuing of the licence to McArdell and save as above, no further steps were taken to investigate: F

(a)

McArdell's antecedents;

(b)

McArdell's character;

(c)

McArdell's physical fitness;

(d)

McArdell's temperamental fitness as stated in clause 10 of SAP 286;

(e)

whether McArdell had committed any unlawful act of violence;

(f)

had threatened any unlawful act of violence; G

(g)

had abused liquor;

(h)

had abused any other substance;

(i)

had been or was incapable of committing any offence by reason of mental illness;

(j)

had a personality order;

(k)

suffered from psychotic illness; H

(l)

had a history of psychotic illness;

(m)

had been hospitalised, arrested or detained for any of the reasons in (e), (f), (g), (h), (i), (j), (k) and (l) above.

20.

No servant of the defendant or any other State official involved in the application and issuing of the licence communicated with; I

(a)

McArdell's next of kin;

(b)

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