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Failure By SAPS To Perform Their Statutory Duties Actionable

Failure By SAPS To Perform Their Statutory Duties Actionable
Nov 1, 2011 gnuworld

In the matter of The Minister of Safety and Security v Paul Johannes Venter & 2 Others the Supreme Court of Appeal dealt with an appeal from the North Gauteng High Court, Pretoria.

The matter related to a delictual action against the Minister of Safety and Security for damages which had been suffered by the Respondents because of the negligent failure by the members of the South African Police Services to perform their statutory duties under the Domestic Violence Act 116 of 1998.

The incident giving rise to the cause of action occurred on 21 October 2002 when Mr Cornelius Whitey van Wyngaardt raped his erstwhile wife, Ms Krista van Wyngaardt, the Second Respondent, and then shot and injured Mr Paul Johannes Venter, the First Respondent.  The Third Respondent was essentially the Second Respondent acting in her representative capacity on behalf of her minor children in relation to trauma which they allegedly suffered during the course of the aforesaid incident and for which she sought to hold the Appellant liable, in addition to the damages which she and the First Respondent had allegedly suffered as a consequence of the incident and the alleged negligent failure by members of the South African Police Services to inform the First and Second Respondents of the relevant provisions in the Domestic Violence Act.

The Supreme Court of Appeal inter alia held that the Domestic Violence Act and the National Instructions on Domestic Violence require the police to advise persons of their rights and to assist them in asserting these rights, where necessary.

The Supreme Court of Appeal found that the Kwazulu-Natal High Court had correctly held that the Respondents had established factual causation in the main action and that insofar as legal causation was concerned the Appellant had not advanced any grounds to suggest that there may be policy considerations that stood in the way of a finding against it.  The Court then turned to the question of contributory negligence on the part of the Respondents and held that the Respondents were indeed contributory negligent in failing to obtain a common law interdict against Mr van Wyngaardt and assessed their respective degrees of negligence as 25% and the Appellant’s degree of fault as 75%.  Insofar as the claim of the Third Respondent was concerned (on behalf of the minor children) the Court held that there had been an absence of any evidence proving that trauma had in fact been suffered by the children and that this action should have been dismissed with costs in the Court below.

For a full copy of the judgment of the Supreme Court of Appeal click here.

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