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Summary Private Law 373 Cases

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This document contains case summaries of all the cases prescribed for the course. The cases are set out in a manner that is understandable, according to the facts, legal question, ratio decidendi and the decision.

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  • May 3, 2020
  • 134
  • 2019/2020
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Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA)

Facts

 The defendant was fond of firearms (had a license in terms of S 3(1) of the Arms and
Ammunition Act), as well as alcohol – consumed it excessively.
 When under the influence he was inclined to become aggressive and abuse his family.
 One afternoon he consumed too much and got into an argument. Brooks shot and killed his
wife and two children and then injured the respondent.
 Basis of the respondent’s claim: 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 respondent being shot.
 In terms of S 11 of the Act, police have the power, in certain circumstances, to deprive a
person of firearms.
 Before the incident, various police officers were in possession of information that reflected
upon Brooks’s fitness to be in possession of firearms.

Legal Question

Was the negligent omission unlawful for purposes of the law of delict? Thus, was the failure of the
police to act unlawful?

Ratio Decidendi

 A negligent omission will be regarded as unlawful conduct when the circumstances of the
case are of such a nature that the omission not only evokes moral indignation but the 'legal
convictions of the community' require that it should be regarded as unlawful.
 In applying the test that was formulated in Minister van Polisie v Ewels the 'convictions of
the community' must necessarily now be informed by the norms and values of our society as
they have been embodied in the 1996 Constitution.
 The reluctance to impose liability for omissions is often informed by a laissez faire concept of
liberty that recognises that individuals are entitled to 'mind their own business' even when
they might reasonably be expected to avert harm and by the inequality of imposing liability
on one person who fails to act when there are others who might equally be faulted.
 The imposition of legal duties on public authorities and functionaries is inhibited instead by
the perceived utility of permitting them the freedom to provide public services without the
chilling effect of the threat of litigation if they happen to act negligently and the spectre of
limitless liability.
 The State is obliged by the terms of S 7 of the 1996 Constitution not only to respect but also
to 'protect, promote and fulfil the rights in the Bill of Rights'.
 “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.”
 “it was reasonably foreseeable that harm might ensue if Brooks' fitness to be in possession
of firearms were not enquired into in terms of s 11 and, in my view, a reasonable police
officer would have taken the initiative to cause such an enquiry to be held. The police
officers who had knowledge of what had occurred on 27 September 1994 were thus clearly

, called upon to do so and, in the absence of an explanation, their failure to do so was
negligent.”
 It was held that even if Brooks was declared unfit to possess a firearm, he would have
obtained one elsewhere unlawfully.
 There is a direct and probable chain of causation between the failure of the of the police not
initiate an enquiry into the fitness of Brooks to a possess firearms following the previous
incident and the shooting of the respondent.

Decision

Appeal is dismissed.

, Van Eeden v Minister of Safety and Security [2002] 4 All SA 346 (SCA)

Facts

 Appellant was raped and assaulted by a dangerous criminal and serial rapist who had
escaped from police custody. He escaped through an unlocked security gate.
 At the time he was facing no fewer than 22 charges, including indecent assault, rape and
armed robbery committed in the Durban area.
 Appellant instituted an action for delictual damages against the State. She claimed that SAPS
had a legal duty to take reasonable steps to prevent the criminal from escaping and causing
her harm and that they negligently failed to comply with such duty.
 At the time of the escape the police had realised that he was a dangerous criminal who was
likely to commit further sexual offences; that his continued detention was necessary for the
protection of the general public and their personal rights and property; that his escape could
easily have been prevented by ensuring that the gate was locked and that in view of the high
incidence of escapes from police custody and sexual attacks on women at the time of
Mohamed's escape, the police had come to regard these matters as a "policing priority".
 Court a quo held that the police did not have a legal duty towards the appellant to act
positively to prevent the harm.

Legal Question

Whether there was a legal duty on the state to act positively to prevent the harm.

Ratio Decidendi

 Common law employs the element of wrongfulness to determine liability for delictual
damages caused by an omission. An omission is wrongful if the defendant is under a legal
duty to act positively to prevent the harm suffered the plaintiff. The test is one of
reasonableness.
 The court determines whether it is reasonable to have expected of the defendant to have
done so by making a value judgment, based inter alia upon its perception of the legal
convictions of the community and on considerations of policy.
 The State has a positive duty to protect everyone from violent crimes.
 S 12 should be read with s 7(2) of the Constitution which imposes a duty on the State to
"respect, protect, promote and fulfil the rights in the Bill of Rights".
 An important consideration in favour of recognising delictual liability for damages on the
part of the State in circumstances such as the present is that there is no other practical and
effective remedy available to the victim of violent crime.
 Courts do not confine liability for an omission to certain stereotypes but adopt an open-
ended and flexible approach to the question whether a particular omission to act should be
held unlawful or not.

Decision

The police owed the appellant a legal duty to act positive to prevent the criminal’s escape. The
existence of such a duty accords with the legal convictions of the community and there are no
considerations of public policy mitigating against the imposition of such a duty. The police
accordingly acted wrongfully and in view of the admission of negligence, vicarious liability and
causation the State must be held liable for any damages suffered by the appellant. The appeal is
upheld.

, Minister of Safety and Security v Carmichele 2004 (3) SA 305 (SCA)

Facts

 The appeal concerns the delictual liability of the State for damages suffered by the
respondent, Ms Carmichele, as a result of a vicious assault perpetrated on her by one
Coetzee.
 Five months before the assault he was released on bail.
 Basis for plaintiff’s allegations: the police officers and prosecutor should have realised that
Coetzee was a danger to society and so they had a duty to oppose his application for release
pending trial.

Legal Question

Whether the prosecutor and police were negligent in not having opposed Coetzee’s application for
bail.

Whether the facts surrounding the release of Coetzee gave rise to a delictual liability on the part of
the State.

Ratio Decidendi

 Wrongfulness
o The departmental instructions to both the police and to prosecutors made it clear
that they had a duty to oppose any bail application in a case such as that of Coetzee.
o someone in the position of the plaintiff has no other effective remedy against the
State, an action for damages is the norm unless public policy considerations point in
the other direction.
o It was held that neither of the prosecutors exercised any discretion.
o The State is liable for the failure to perform the duties imposed upon it by the
Constitution unless it can be shown that there is compelling reason to deviate from
that norm.
o The plaintiff was not simply a member of the public, she was a member of a class of
people whom the State would have foreseen as being potential victims of another
attack by Coetzee.
- He’s mother worked in the house where the plaintiff was staying.
o Proximity, while not an independent requirement for wrongfulness, must surely
reinforce the claim that the State should be held liable for a culpable failure to
comply with its duties. And foreseeability of harm is another factor to be taken into
account in determining wrongfulness. The greater the foreseeability, the greater the
possibility of a legal duty to prevent harm existing.
 Negligence
o Persons in their position (police captain and control prosecutor) are entitled to rely
on the opinion of another in relation to matters such as this, but that did not entitle
them to rely blindly on such an opinion where there was nothing in the docket which
justified the opinion.
o The departmental guidelines issued to both of them required of them to oppose
bail.
o It was held that a reasonable person in their positions would not have made the
recommendation.

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