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WHEN IS THE STATE LIABLE FOR DELICTS COMMITTED BY MEMBER OF THE PUBLIC

This article is devoted to a discussion of two decisions handed down by the Supreme Court of Appeals which two decisions have their origins from one set of facts.

The two cases we are discussing are:


MINISTER OF SAFETY AND SECURITY vs VAN DUIVENBODEN  2002 (6) SA 431 (SCA

and

BROOKS VS MINISTER OF SAFETY AND SECURITY (036/08) [2008] ZASCA 141

 

The background of facts leading to these two decisions are most ably set out by Nugent JA in the first case cited above paragraph 1 of his judgement and reproduced below thus;

"Neil Brooks, who lived in Bothasig on the Cape Peninsula with his wife, Dawn, and their two children, Nicole and Aaron, was fond of firearms. He owned a 9mm pistol and .38 revolver, both of which he was licensed to possess in terms of s 3(1) of the Arms and Ammunition Act 75 of 1969. Brooks was also fond of alcohol, which he habitually consumed to excess. When under its influence he was inclined to become aggressive and to abuse his family. On 21 October 1995 these various aspects of his life combined into tragedy.

During the late afternoon, after Brooks had been drinking at the family home, a domestic squabble erupted. Brooks loaded both his firearms, placed a holster and more ammunition around his waist, and confronted Dawn, who was then in the garage with the children. Brooks pointed the cocked pistol at her, but she repeatedly pushed it away, and then he shot her. Although she was injured Dawn managed to escape from the garage with Aaron and they sought refuge across the road on the property of the respondent[Van Duivenboden]. Brooks then turned on eleven-year-old Nicole, who remained trapped in the garage, and he shot and killed her before following after Dawn.

Meanwhile, Aaron, who was in possession of Dawn’s revolver, had called on the respondent for assistance and had handed to him the revolver. The respondent and his father went into the street to investigate, where they encountered Brooks who began firing at them and at other neighbours who had come to investigate, with both firearms. A bullet struck the respondent in the ankle as he attempted to flee and he collapsed on the ground. Brooks found Dawn hiding in the respondent’s garage and he shot her repeatedly until she was dead. He then returned to where the respondent had collapsed and shot him in the shoulder before the respondent managed to ward him off by firing with Dawn’s revolver. Ultimately the police arrived and Brooks was arrested. He is now serving a long term of imprisonment for the crimes he committed that day."

In paragraph 3 of his judgment, The Learned Judge of Appeal carries on by describing the action brought by the plaintiff in that case by stating:

"No doubt the respondent’s grievance lies primarily against Brooks but he chose instead to sue the state, represented by the appellant, for recovery of the damages that he sustained as a result of his injuries. The basis of his claim, put simply, is that the police were negligent in failing to take the steps that were available in law to deprive Brooks of his firearms before the tragedy occurred, notwithstanding that there were grounds for doing so, and that their negligence was a cause of the respond when ent being shot. The action was tried in the High Court at Cape Town before Desai J who ordered, by agreement, that the question of liability should be decided separately from the question of damages. At the conclusion of the trial on that issue the respondent’s claim was dismissed with costs but on appeal to the Full Court that decision was reversed (Davis and Louw JJ, Moosa J dissenting)."

Now it emerged that there were previous incidents which were reported to the police in which Brooks had been using his firearms in a manner dangerous to the safety of others and the real basis of the claim in this case was that the police were liable for the damages sustained by the plaintiff by virtue of the fact that it did not take appropriate steps available to it to dispossess Brooks of the right to hold firearms and to dispossess him of such firearms.

The same learned Judge of Appeal had this to say at paragraph  of his judgment:

"In this case we are concerned only with whether police officers who, in the exercise of duties on behalf of the state, are in possession of information that reflects upon the fitness of a person to possess firearms are under an actionable duty to members of the public to take reasonable steps to act on this that information in order to avoid harm occurring. There was no suggestion by the appellant that the recognition of a legal duty in such circumstances would have the potential to disrupt the efficient functioning of the police, or would necessarily require the provision of additional resources, and I see no reason why it should otherwise impede the efficient functioning of the police – on the contrary the evidence in the present case suggests that it would only enhance it.

There is no effective way to hold the state to account in the present case other than by way of an action for damages, and in the absence of any norm or consideration of public policy that outweighs it the constitutional norm of accountability requires that a legal duty be recognised. The negligent conduct of police officers in those circumstances is thus actionable and the state is vicariously liable for the consequences of any such negligence."

The Supreme Court of Appeal then considered whether or not the police were negligent and if so whether the negligence resulted in the injury sustained by the appellant at hand of Brooks in the manner described above. Nugent JA held that the police were in deed negligent in not initiating steps to dispossess Brooks of both his firearm license and of his firearms. At numbered paragraph 20 of his Judgment Nugent JA said:-

"It must be borne in mind that it was because Brooks confidently and openly possessed two firearms and piles of ammunition that he was able to kill members of his family and to shoot the respondent with such ease. If he had been deprived of the right to possess firearms the respondent certainly would not have been shot in the circumstances that occurred. While it is possible that Brooks might have acquired a firearm in some other way the pattern of events would necessarily have followed a different course if that had occurred. Whether that would have arisen at all, and if so, whether the altered circumstances would have resulted in the respondent being shot, are in my view questions that are so speculative that they should be discounted from the enquiry."

And at paragraph 30 the Learned Judge of Appeal said:

"In my view there is a direct and probable chain of causation between the failure of the police to initiate an enquiry into the fitness of Brooks to possess firearms following the incident that occurred on 27 September 1994 and the shooting of the respondent. It was not suggested that the respondent’s loss was too remote or that there is any other reason for not giving legal recognition to the chain of causation. The negligent and wrongful conduct of the police having been a cause of the respondent’s injuries the court a quo correctly upheld the claim. The appeal is dismissed with costs."

Now, having regard to what the Supreme Court of Appeal found in this case, it is interesting to note that the same Court (with a different bench presiding) on the same facts ruled against Brooks's son who also claimed damages from the State due to the fact that his father was now in incarcerated for his actions and if such he was deprived of his report he would have enjoyed had his father not committed this act, and not being incarcerated.

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