Minister of Safety and Security v Hamilton

• Jurisdiction: South Africa
• Citation: 2004 (2) SA 216 (SCA)

Minister of Safety and Security v Hamilton
2004 (2) SA 216 (SCA)

2004 (2) SA p216

Citation	2004 (2) SA 216 (SCA)
Case No	457/2002
Court	Supreme Court of Appeal
Judge	Howie P, Mthiyane JA, Conradie JA, Heher JA and Van Heerden AJA
Heard	August 21, 2003
Judgment	September 26, 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.

Flynote : Sleutelwoorde E

Negligence — Liability for — Wrongfulness — Omission — Whether F negligent omission to be regarded as unlawful — By police officers in application for firearm licence — Police officers accepting correctness of information supplied by applicant for firearm licence — Police officers having legal duty to exercise reasonable care in considering, investigating and recommending application for firearm licence — Failure of police officers to exercise such duty properly — Firearm licence G issued to unfit person — Unfit person to whom firearm licence issued shooting respondent — State liable for respondent's damages resulting from shooting incident.

Negligence — Liability for — Causation — Remoteness — Police negligent in omitting to exercise reasonable care in considering, H investigating and recommending application for firearm licence — Licence issued to unfit person — Almost year later unfit person shooting respondent — Unfit person would not have possessed firearm had licence not been issued — Considerations of reasonableness, fairness and legal policy not justifying conclusion that respondent's loss was too remote — State liable for damages resulting from shooting by unfit person to whom firearm licence issued.

Negligence — Liability for — Legal duty — Legal duty to exercise reasonable care in I considering, investigating and recommending application for firearm licence — Police members, as general rule, duty-bound in law to do more than simply take applicant's fingerprints and mechanically complete prescribed forms, relying solely on information given to them by applicant and their personal observations of applicant at stage of making application — J

2004 (2) SA p217

Relevant police members under legal duty to take proper measures to screen application for A firearm licence by making such enquiries as were reasonable in circumstances to corroborate veracity of information furnished to them by applicant in relation to his or her physical, temperamental and psychological fitness to possess firearm — Failure by police members to exercise duty properly resulting in firearm licence issued to unfit person — Reasonable person in position of B police officer would have foreseen that, in absence of any such corroborative enquiries, applicant for firearm licence who was clearly unfit to possess firearm might have firearm licence issued to him or her and that this might well result in harm being inflicted on person in general public — State liable for damages resulting from shooting by unfit person to whom firearm licence issued. C

Police — Duties of — In application for firearm licence in terms of s 3(1) of Arms and Ammunition Act 75 of 1969 — Relevant statutory provisions for purposes of considering and recommending applications for firearm licences imposing statutory duties on police members involved in process — Such police members, as general rule, duty-bound in law to do more than simply take applicant's fingerprints and D mechanically complete prescribed forms, relying solely on, and accepting veracity of, information given to them by applicant and their personal observations of applicant at stage of making application — Relevant police members under legal duty to take proper measures to screen application for firearm licence by E making such enquiries as were reasonable in circumstances to corroborate veracity of information furnished to them by applicant in relation to his or her physical, temperamental and psychological fitness to possess firearm — Failure by police members to exercise duty properly resulting in firearm licence issued to unfit person — Reasonable person in position of police officer would have foreseen that, in absence of any such corroborative F enquiries, applicant for firearm licence who was clearly unfit to possess firearm, might have firearm licence issued to him or her and that this might well result in harm being inflicted on person in general public — State liable for damages resulting from shooting by unfit person to whom firearm licence issued.

Firearms — Arms and Ammunition Act 75 of 1969 — Firearm licence — Application for — Police having legal duty to exercise reasonable care G in considering, investigating and recommending application for firearm licence — Omission to exercise legal duty — State liable for damages resulting from shooting by unfit person to whom firearm licence issued.

Headnote : Kopnota

In terms of s 3(1) of the Arms and Ammunition Act 75 of 1969 M applied for a licence to possess a revolver. The stated purpose for H which she required the revolver was self-protection. M filled in the required form, whereafter the application was 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 M. About 10 months later, on 6 August 1994, M shot the respondent, following an altercation about a parking bay. The I respondent sustained a spinal injury resulting in his becoming a tetraplegic. The respondent instituted action in a Provincial Division, claiming delictual damages from the Minister of Safety and Security, the appellant, and the High Court gave judgment in the respondent's favour, declaring that the appellant was liable to the respondent for J

2004 (2) SA p218

such damages as the latter suffered as a result of the attack on him by M. The appellant appealed against such A decision.

It was conceded before the Court on appeal that, on the evidence, M was unfit to possess a firearm at the relevant times, viz when she applied for a licence, when the licence was issued to her, and during the intervening period. It was clear from the facts that M had a history of psychological and emotional disturbance and was receiving B counselling and therapy from several mental health professionals. She abused alcohol from time to time and certain psychiatric medications (such as valium) were prescribed for her by various psychiatrists. (Paragraph [10] at 226F/G - 227B.) The appellant had submitted (i) that there was no statutory or common-law duty on the police officials involved in processing M's application to go beyond a consideration of C the information in the prescribed documents and an acceptance of the veracity of the applicant's declaration that such information was true and correct (and, more specifically, that such police officials were not duty-bound in law to investigate the personal circumstances of individual applicants for firearm licences in the absence of particular compelling reasons to do so); (ii) that the relevant police officials D (acting in their capacity as the appellant's servants) did not negligently breach any statutory or common-law duty to which they were subject; and (iii) that there was no causal relationship between the conduct of the police officials concerned and the harm suffered by the respondent through being shot by M with her licensed revolver. (Paragraph [13] at 228E - G/H.)

Held, that the statutory framework within which applications for licences to possess firearms were made and considered was provided E by the Arms and Ammunition Act 75 of 1969 (the Act), the regulations promulgated under s 43 of the Act and the Special Force Order issued. (Paragraph [21] at 231D/E - F/G.)

Held, further, that it was clear from the above that the Special Force Order was indeed, at all times pertinent to this case, a 'relevant statutory provision' for the purposes of F considering and recommending applications for firearm licences, and that this order imposed statutory duties on the police members involved in this process. The police members involved in processing an application for a firearm licence in terms of s 3(1) of the Act were, as a general rule, duty-bound in law to do more than simply take the applicant's fingerprints and mechanically complete the prescribed forms, relying solely on, and accepting the veracity of, the G information given to them by the applicant and their personal observations of the applicant during the interview at the stage of making the application. (Paragraph [32] at 234H - 235C.)

Held, further, that, subject to possible exceptional cases, the relevant police members were under a legal duty to take proper measures to screen an application for a firearm licence by making such enquiries as were reasonable in the circumstances to corroborate the H veracity of the information furnished to them by the applicant in relation to his or her physical, temperamental and psychological fitness to possess a (potentially lethal) firearm. (Paragraph [32] at 235E - F.)

Held, further, that a reasonable person in the position of the appellant's servants would have foreseen that, in the absence of I any such corroborative enquiries, an applicant for a firearm licence who was clearly unfit to possess a firearm might have a firearm licence issued to him or her and that this might well result in harm being inflicted on a member of the general public. (Paragraph [39] at 238F - G.)

Held, further, that, had the relevant police members executed their legal duties properly, they would have come to the compelling conclusion that M was not fit to possess a firearm. This information would have been conveyed by J

2004 (2) SA p219

them to the Commissioner and the latter would not have issued the licence to her. There was no A ...