CASES

Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd:

FACTS:
o The defendant was a manufacturer of bricks and the plaintiff a civil engineering
contractor.
o The plaintiff alleged that an employee of the defendant had, while acting within the
scope of his employment, with a bulldozer negligently cut municipal cables which
supplied electricity to the industrial area.
o As a result it was alleged that the supply of electricity to the plaintiff’s and other
manufacturer’s brickworks was interrupted for approximately 72 hours.
o During this period the plaintiff and other manufacturers were unable to manufacture
bricks and suffered damage in the form of lost profits to the tune of R22000.
o The plaintiff obtained cession of the other manufacturer’s claim and claimed the full
amount from the defendant.
o The defendant excepted on the ground that the claim did not reveal a cause of action.
This was dismissed.

FLYNOTE:
o Negligence - Action for damages - Plaintiff suing defendant (civil engineering contractor) in
delict for negligently cutting electrical D cables which resulted in power supply to plaintiff's
brick works being cut off - Such resulting in loss of production and financial loss by plaintiff -
Defendant excepting to plaintiff's particulars of claim as disclosing no cause of action, inter
alia, on basis that claim was a E delictual one for pure financial or economic loss and that there
was no contractual nexus between parties, nor was plaintiff the owner of the cables -
Accordingly no duty of care rested on defendant - Plaintiff giving notice of amendment to
allege that defendant knew that plaintiff would suffer loss in event of power supply being cut -
Special relationship between parties not prerequisite for liability - Foreseeable F loss
substantial - Defendant owing legal duty to plaintiff to act carefully - Amendment granted and
exception dismissed.
o Negligence - Action for damages - Pleadings - Particulars of claim - Only negligence, and not
unlawfulness, alleged - Not excipiable merely because unlawfulness not alleged in terms -
Averment of negligence construed as containing an implied allegation of unlawfulness.
o Negligence - Action for damages - Pleadings - Claim for pure economic loss - General allegation
of unlawfulness by plaintiff - Request for particulars as to such unlawfulness - What defendant
should ask - When H insufficient particulars asked, general allegation of unlawfulness might
carry the day in a later exception to particulars of claim.
o Damages - Remoteness of - Action for damages - Plaintiff suing defendant (civil engineering
contractor) in delict for cutting electrical cables which resulted in power supply to plaintiff's
brick works being cut off - Such resulting in loss of production and financial loss by plaintiff -
Defendant excepting to plaintiff's particulars of claim as disclosing no cause of action, inter
alia, on basis that claim was a delictual one for pure financial or economic loss and that there
was no contractual nexus between parties nor was plaintiff the owner of the cables -
Accordingly no duty of care rested on defendant - Plaintiff giving notice of amendment to
 allege that defendant knew that A plaintiff would suffer loss in event of power supply being
cut - Special relationship between parties not prerequisite for liability - Foreseeable loss
substantial - Defendant owing legal duty to plaintiff to act carefully
o Amendment granted and exception dismissed.

Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as amicus
curiae):

FACTS

o A man was locked in a cell in Durban that was not locked properly and he escaped
o Three months later he assaulted and rape a woman in Pretoria and she sued the Minister of
Safety and Security for damages

HELD

o Minister and Police were liable due to there negligence and were, therefore, accountable for
their conduct

o The Constitutional value of the protection of women and children from violence and abuse
underpinned the decision in this case
o In that all law, State actions, court decisions and even the conduct of natural and juristic
persons may be tested against them

All private law rules, principles or norms, including those regulating the law of delict, are subjected
to, and thus given content in the light of the basic values in the Bill of Rights

Carmichele v Minister of Safety and Security

FACTS

o Applicant was a 28-year old woman who was brutally assaulted at home of Mrs Gosling
o In a Accused had previously been convicted of housebreaking and indecent assault.
o At time of assault the accused was also facing further charges.
o Mrs G was aware of previous convictions therefore asked police to keep accused in custody
pending his trial.
o Nothing was done
o The accused attempted suicide and also revealed serious sexual deviation tendencies
THEREFORE he was re-arrested and sent to a psychiatric hospital for observation.
o He was released from hospital and a report was made – it did not contain any info that the
accused was a danger to society therefore not placed in police custody.
o Shortly thereafter the accused was found snooping around Mrs G’s house (where he had
stayed before).
o THEREFORE Mrs G reported this to Senior prosecutor who said that she was powerless to do
anything.
o The accused attacked the applicant in G’s house and seriously wounded her.
o Applicant therefore brought a delictual claim against the Minister of Safety and Security AND
Minister of Justice for injuries sustained.
o The appeal was upheld and matter referred back to HC for it to continue with the trial.

RELEVANT SECTION

o Courts have constitutional duty to develop common law in conformity with the Constitution
and its values.
o S173 of ©: courts inherent power to develop the common law, taking into consideration the
interests of justice.
Malahe and others v Minister of Safety and Security

FLYNOTE:
o Criminal procedure - Arrest - Use of force in effecting arrest - Lawfulness of - Criminal
Procedure Act 51 of 1977, s 49(1) - Shooting by policemen at suspect in car in order to stop car
and bring about arrest - Section 49 of Act not C constituting defence in respect of passengers
in vehicle, whom police had not attempted to arrest and who could not be thought to be
fleeing arrest - Such approach according with need to protect innocent passengers against
unlawful use of firearms - While not seeking to render powers of police under s 49(1) of Act
nugatory, such powers to be exercised with circumspection and at all times strictly within
confines laid down by that section.

o Delict - Wrongful arrest - Use of force in effecting arrest - Criminal Pro- cedure Act 51 of 1977,
s 49(1) - Shooting by policemen at suspect in car in order to stop car and bring about arrest -
Shooting sustaining prima facie inference of E wrongfulness - Onus on policemen to establish
justification in terms of s 49(1) - Where probabilities evenly balanced, policemen not
discharging onus - Shooting wrongful - Policemen liable for damage caused thereby.
o Delict - Wrongful arrest - Use of force in effecting arrest - Criminal Pro- cedure Act 51 of 1977,
s 49(1) - Duty to F abstain from causing damage to plaintiff - Passengers in vehicle driven by
suspect and pursued by police - If presence of passengers known to or reasonably foreseeable
by police, police owing passengers legal duty not to cause them injury - Shooting at vehicle
and thus causing injury to passengers prima facie wrongful and casting onus on police to
justify conduct.

Kadir v Minister of Law and Order

FACTS

o The plaintiff, whilst driving his motor vehicle, had swerved to avoid an inadequately secured
bundle of clothing which had fallen off the back of the motor vehicle in front of him. The
plaintiff's car left the road as a result of which he was injured.
o Shortly after the collision two police constables arrived on the scene of the collision and,
whilst they were still on the scene, the driver of the vehicle from which the bundle of clothing
 had fallen returned to retrieve it. The constables failed to take down the particulars of this
driver despite having been informed by a witness of his identity.
o The plaintiff thereupon instituted an action for damages against the defendant, alleging that
there was a duty on the constables, who knew that the plaintiff had sustained serious injuries
in the collision and was unable to act on his own behalf, to take down the necessary
information relating to the identity of the said driver and that they should have foreseen that
a failure properly to investigate the collision would cause plaintiff to suffer damages. The
police took exception to this.

LAW AND APPLICATION

o Although a breach of a statutory duty could not in law give rise to the claim instituted against
the defendant, the particulars of claim made it clear that the plaintiff was not relying only on
the statutory duty of the police, but also on their extra-statutory duties created by public
expectations.
o The community would consider that in the circumstances of the particular case a duty of care
existed to record the relevant information and that plaintiff had pleaded sufficient allegations
from which an inference of normative foreseeability of harm could be drawn.
o As regards the issue of indeterminate liability, the instant judgment did not render the police
liable for the negligent investigation of motor vehicle accidents, or even of any crime - each
case had to be treated on its own facts and merits.

CONCLUSION

o The policemen had failed in their legal duty to the plaintiff and the exception was dismissed
Minister of Safety and Security v Hamilton

FLYNOTE:
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 - 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.

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.

Cape Town Municipality v Bakkerud

FACTS

o The respondent, an elderly lady, was walking along the pavement of the street towards her
home.
o There were two holes in the tarred pavement which had been there for at least six months.
She stepped into one of the holes, stumbled, fell, sustained injuries and suffered loss. She had
been aware of the existence of the holes but had probably been absent-minded at the time.
o The relevant legislation empowered but did not oblige the municipality to construct and repair
streets and pavements within its area of jurisdiction.
o The respondent’s claim for damages was upheld by a magistrate’s court and confirmed by the
Cape High Court, having characterized the municipality’s failure to keep streets and
pavements in a safe condition as wrongful and negligent

LAW AND APPLICATION

o The court confirmed the general principle that the law is reluctant to impose delictual liability
for omissions.
o The reasonable person test (for negligence) cannot be employed to determine whether such
liability exists, for the following reasons:
1. The test for negligence is only relevant after it has been determined that a legal duty to act
positively exists

2. The application of the negligence test for the determination of a legal duty could be too
burdensome for society to shoulder. Nevertheless factors that are relevant to the question of
wrongfulness, can also be relevant to the test for negligence.

o The court pointed out that although various factors developed in case law, which are
indicative of a legal duty to act positively, such as prior conduct, a special relationship, etc, this
list is not exhaustive. In the final analysis the test for the existence of a legal duty is whether
the legal convictions of the community demand that the omission ought to be regarded as
wrongful and this is dependent on contemporary community attitudes
o Applied to the so-called municipality cases, the court held that prior conduct or a statutory
obligation, as was previously incorrectly assumed, are not prerequisites for wrongfulness in
the case of an omission. The legal convictions of the community may even in the absence of
these two factors place a legal duty on a municipality to repair or to warn against dangers.

CONCLUSION

o The decision was confirmed, albeit criticized, by the SCA