THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No 570/2009

In the matter between:

THE MINISTER OF SAFETY AND SECURITY

Appellant

and

PAUL JOHANNES VENTER

First Respondent
CHRISTA VAN WYNGAARDT

Second Respondent
CHRISTA VAN WYNGAARDT NO

Third Respondent

Neutral citation:   Minister of Safety and Security v Venter (570/09) [2011]
ZASCA 42 (29 March 2011)

Coram:
Mpati P, Cachalia and Majiedt JJA
Heard:
23 February 2011
Delivered:
29 March 2011

Summary:  Delict ─ action for damages ─ failure of police to inform
complainants of the provisions in the Domestic Violence Act ─
constituting negligence which caused complainants harm when
they suffered an unlawful attack on them ─ complainants found to
be contributorily negligent.

ORDER
______________________________________________________________
On appeal from: North Gauteng High Court, Pretoria (Mynhardt J sitting as
court of first instance).

(1)
The appeal is dismissed except to the extent indicated in this order.
(2)
The appellant is to pay the costs of the appeal including the costs of
two counsel.
(3)
The order of the court below is set aside and is replaced by the
following:

'(a) It is declared that the defendant is liable to pay to the first and
second plaintiffs 75 per cent of such damages as they are able to prove or as
may be agreed upon.
(b) The defendant is ordered to pay the first and second plaintiffs'
costs, including the costs consequent upon the employment of two counsel.
(c)  The third plaintiff's claim is dismissed with costs.'

______________________________________________________________

JUDGMENT

MAJIEDT JA (MPATI P, CACHALIA JA concur):

[1] This is an appeal against a judgment of Mynhardt J in the North
Gauteng High Court holding the Minister of Safety and Security  liable for
damages suffered by the respondents because of the negligent failure by
members of the South African Police Service (SAPS) to perform their
statutory duties under the Domestic Violence Act 116 of 1998 (the Act). The
appeal is with the leave of the court below.

[2] The incident giving rise to the cause of action occurred on 21 October
2002, when Mr Cornelius Whitey van Wyngaardt (Whitey) raped his erstwhile

wife, Ms Christa van Wyngaardt, the second respondent, (Christa) and then
shot and injured Mr Paul Johannes Venter, the first respondent (Venter).
Whitey was later arrested by the SAPS. He committed suicide whilst in police
custody.

[3] The events preceding the incident are largely common cause. The
second respondent was married to Whitey. Two children were born of their
marriage. The first respondent and his wife were friends and frequent visitors
to the Van Wyngaardt home. Both marriages ended and after Venter’s wife
left him, Christa moved into Venter’s home with her children.

[4] Whitey initially had no difficulty with this arrangement; in fact he
encouraged it. There was no suggestion at the time of any romantic
connection between Christa and Venter. However, the nature of their
relationship changed and became more intimate after she moved in with him.
This caused Whitey to become jealous. Later his behaviour became
compulsive. He made incessant telephone calls, sent abusive text messages
to her and threatened to set their house on fire and kill them.

[5] As a result of Whitey's increasingly erratic and threatening behaviour
Venter approached the Brakpan police station during June 2002 to seek
advice on how he could deter Whitey from coming to his house. They told him
that they could only act if Whitey physically tried to enter the house.

[6] At about the same time Venter, accompanied by Christa, also
approached the Brakpan Magistrate’s Court to find out how he could obtain an
interdict to prevent Whitey from entering his property. He was informed that
he had to obtain a case number from the police before he could take the
matter further. The respondents did not, however, pursue this course. As will
become apparent later in this judgment, the appellant contends that even had
the SAPS advised the respondents of their remedies under the Act they would
probably not have pursued any of these remedies – just as they had not done
with the interdict.

[7] On 27 July 2002 Whitey arrived at the respondents’ house. Venter
telephoned the police for assistance. They arrived promptly. However, Whitey
persuaded them that he had merely come to fetch his children, which he was
entitled to do in terms of the divorce decree that granted him access to them.
In these circumstances the police were constrained to permit him to take the
children with him. This distressed the respondents. They felt that Whitey had
manipulated the situation to his advantage.

[8] Whitey's conduct became even more threatening after this incident
prompting Venter to approach the Brakpan police again on 20 August 2002.
This time he had prepared a statement in Afrikaans with details of Whitey’s
threatening behaviour against Christa, the children and him personally. The
statement contained a paragraph which, translated loosely, said that he did
not wish the police to conduct any investigation against Whitey, but to prevent
him from entering their property. However, the police officer who was on duty
told him that the police could not assist him, and nothing came of this
complaint.

[9] Whitey’s conduct continued unabated. On 11 October 2002 he
collected the children from the respondents' house and, shortly afterwards, he
telephoned Christa. This time he threatened to kill the children and himself
should she go to the police. He wanted her to return to him.

[10]  In response to this threat the respondents hurried to the police for
assistance. They reported to an Inspector de Koker who was sceptical that
they had a case. He initially would not take a statement from them and
relented only after Venter telephoned his attorney who spoke to De Koker and
tried to persuade him to act on the complaint. This intervention, and that of a
Captain Abrahams, caused De Koker to open a case docket. De Koker,
however, remained reticent and only took down a brief unattested statement
from Christa.

[11]  It appears from the evidence that, pursuant to the complaint, Christa
had a telephonic conversation with a Sergeant Naude the following day and

requested the latter not to contact Whitey on his telephone because the
children were still with him. The following day, on 13 October, Whitey allowed
the respondents to collect the children. They did so and later informed Naude
that the children were home. In the days immediately following this incident
nothing came of their complaint, despite Christa’s request in her statement
that the matter be investigated.

[12]  This brings me to the events of 21 October 2001. Whitey arrived at the
repondents’ house unexpectedly. He had telephoned Christa the previous day
and requested that they meet, but no date was set for this meeting. Christa
was alone at home with their four year old child. She was hesitant to let him in
but decided to open the door for him because she realised that he would have
seen his daughter through the open windows and curtains. He entered and
said ominously that it was 'elimination day'. She asked what he meant. He
replied that she would soon find out. He told her to accompany him to his car.
She did. He then took out a crossbow and a set of handcuffs from the boot.
He told her that he was going to kill Venter with the crossbow when he
returned and that he would use the handcuffs to handcuff her to the bed.

[13]  They entered the house and he proceeded to use the crossbow to
shoot at and damage several items in the house. While doing this he told her
to go to the bedroom and undress. He threatened to cause even further
damage if she did not obey. She complied. He followed her and began
scratching around one of her wardrobes. He found Venter’s firearm which is
usually hidden in a safe but had been kept in the bedroom so that Christa
could protect herself from her erstwhile husband. The discovery of the firearm
seemed to spur on the intruder. He then raped her.

[14]  Some time later they collected the other child from school on Whitey’s
insistence. They took both children to Christa’s sister’s home. Whitey did not
want the children to be at home when Venter returned from work.

[15]  They returned to the respondents’ home and waited for Venter to
return. According to Venter, he had received a telephone call from Christa’s

mother earlier. She told him that she had phoned Christa and feared that
something was wrong. He also tried to telephone Christa but there was no
response. He then decided to go home to investigate. He arrived home at
about 15h00 and saw Whitey’s car parked outside. This heightened his
anxiety. He walked to the front door and tried to open it, but was not able to
because it was locked. He then walked to one of the side windows where he
saw Christa. She began screaming while trying to warn him to run away.

[16]  Fearing that both children were inside with Christa and Whitey he
instinctively tried to gain entry through the front door by force. Whitey fired a
shot through the door. The bullet struck him on his arm. He then tried to flee
but Whitey pursued him by car and fired more shots at him. Fortunately he
found a place to hide. The police arrived shortly afterwards and arrested
Whitey. Two days later he apparently committed suicide in the police cells.

[17]  The respondents sued the Minister of Safety and Security for damages
based on the failure of the police to perform their legal duty to assist the
respondents to take steps to protect themselves under the Act. The appellant
does not dispute that the Act imposes a legal duty to take steps to protect the
respondents in the circumstances of this case. Nor does he dispute that the
police were negligent in failing to assist the respondents in accordance with
the Act’s provisions. It is however contended that the respondents failed to
prove that such negligence caused their damages, because they would
probably not have taken steps to protect themselves even if the police had
assisted them or, at the very least, that their own negligence contributed to
what happened.

[18] It is important to understand the ambit of the legal duty that the police
owed to the respondents. The Act and the National Instructions on Domestic
Violence1 (the Instructions) require the police to advise persons of their rights
and to assist them in asserting these rights, where necessary.

1 Issued by the National Commissioner of SAPS and published in GG 20778 30 December
1999.

[19] The Act contains a panoply of rights and remedies available to victims
of domestic violence that is derived from the constitutional duty imposed on
the State by s 12(1) of the Constitution to protect the right of everyone to be
free from private or domestic violence.2 The preamble to the Act declares that
its objective is to 'afford the victims of domestic violence the maximum
protection from domestic abuse that the law can provide' (italics added). To
this end Parliament introduced measures to ensure that the relevant organs of
State (including the SAPS) give full effect to the provisions of the Act.

[20] Section 2 imposes a duty to assist and inform complainants of their
rights under the Act. It reads as follows:
'2.
Duty to assist and inform complainant of rights – Any member of the South African
Police Service must, at the scene of an incident of domestic violence or as soon thereafter as
is reasonably possible, or when the incident of domestic violence is reported─
(a)
render such assistance to the complainant as may be required in the circumstances,
including assisting or making arrangements for the complainant to find a suitable shelter and
to obtain medical treatment;
(b)
if it is reasonably possible to do so, hand a notice containing information as
prescribed to the complainant in the official language of the complainant's choice; and
(c)
if it is reasonably possible to do so, explain to the complainant the content of such
notice in the prescribed manner, including the remedies at his or her disposal in terms of this
Act and the right to lodge a criminal complaint, if applicable.'

[21] Section 7 sets out the procedure for obtaining a protection order and
the wide-ranging powers that a court has to issue one. Of relevance to this
case is the power to restrain a respondent from entering a complainant's
place of residence,3 or prohibit any emotional, verbal and psychological
abuse, intimidation, harassment and stalking.4 A court may also refuse a
respondent contact with a child or permit it subject to suitable conditions.5

2 S v Baloyi (Minister of Justice & another intervening) 2000 (2) SA 425 (CC), 2000 (1) SACR
81; 2000 (1) BCLR  86  para 11. See also: Van Eeden v Minister of Safety & Security
(Women's Legal Centre Trust as amicus curiae) 2003 (1) SA 389 (SCA); [2002] 4 All SA 346
para 13.
3 Section 7(1)(e).
4 Section 7(6).
5 Section 7(1)(a).

[22] A breach of a protection order is an offence, which carries a penalty of
a fine or period of imprisonment for a period not exceeding five years or both
such fine and imprisonment.6 Where threats of death or injury have been
made and where a respondent's state of mind or mental condition warrants it,
a court must order seizure of any arm or dangerous weapon in the possession
of or under the control of a respondent.7

[23] The Instructions provide guidelines to members of the SAPS on how to
respond to complaints. Paragraph 3(5) requires station commissioners to
ensure that copies of the Act, the Regulations, the Instructions, station orders
issued by the station commissioner8 and a list of relevant role players9  are
available at all times at a police station. Paragraph 3(6) requires a station
commissioner to issue orders to members on how to assist complainants to
access services provided by these role players or any other aspect
concerning domestic violence.

[24] On receipt of a domestic violence complaint wide-ranging duties are
imposed on both the station commander10 and the member receiving the
complaint.11 These include the duty to investigate a complaint and to collate
all information in connection with it.12 Paragraph 7 sets out the various duties
imposed on members. There is also a duty to render general assistance to a
complainant. Specific assistance that must be provided includes, inter alia, the
responsibility imposed on a member to open a docket and to register it for
investigation where a complaint is made and, where no complaint is made, to
assist a complainant to make such a complaint. This assistance must be
recorded in the occurrence book and in the member's pocketbook. A Notice,
attached as Form 1 to the Regulations, must be handed to a complainant in
the language of his or her choice.13 That Notice details a complainant's right

6 Section 17.
7 Sections 9(1)(a) and (b).
8 Para 36(6).
9 As set out in para  3(1).
10 Para 4.
11 Para 5.
12 Para 5(2)(d).
13 Para 10.

to lay a charge or to apply for a protection order or to do both. The
complainant must be informed that it is not necessary to lay a charge before
applying for a protection order. The difference between the remedies must be
explained. A charge is aimed at securing a conviction of an accused whereas
the purpose of a protection order is to prevent future misconduct.

[25]  The respondents contend that had they been aware of and understood
their rights under the Act – in particular their right to apply for a protection
order – they would have taken the appropriate steps to protect themselves.
As I have mentioned earlier the appellant’s response is that they have not
established that they would have. This is the nub of the dispute.

[26]  In support of its contention the appellant points to the respondents’
failure to pursue their remedy to obtain a common law interdict against Whitey
in the magistrate's court. It will be recalled that Venter was advised that he
needed to obtain a case number before he could get the interdict. But he and
Christa did not do anything further. In this regard what also counts against
them is that in their further particulars they denied that they had approached
any court to obtain a common law interdict and had to recant during cross-
examination. They were subjected to extensive cross-examination on this
issue. One of the reasons that they did not pursue the common law remedy
was because they were afraid that this could ‘push him over the edge’ as
Christa put it. Another reason advanced was that their subsequent visits to the
police – particularly their encounter with De Koker – led them to believe that it
was futile to try to do anything about Whitey’s conduct. They were however
driven to concede that they could have applied for an interdict. To this I should
add that Venter had previously relied on the services of an attorney when he
had problems in trying to convince De Koker to act on his complaint. If he had
consulted his attorney he may well have been advised that he could obtain a
protection order under the Act. A common law interdict would conceivably
have afforded them some relief, namely to prohibit Whitey from access to their
property. A protection order would, as set out above, have afforded them
more wide ranging relief.

[27] It is abundantly evident that the Act and Instructions afford
complainants wide ranging remedies and impose extensive duties on SAPS
members to assist complainants in accessing these remedies. The Act and its
predecessor, the Prevention of Family Violence Act,14 were specifically
enacted to deal effectively with family violence, since the criminal justice
system was palpably unable to do so.15 This legislation is similar to that in
other parts of the world.16 The extensive protection available under the Act
would be meaningless if those responsible for enforcing it, namely SAPS
members, fail to render the assistance required of them under the Act and the
Instructions. The legislature clearly identified the need for a bold, new strategy
to meet the rampant threat of ever increasing incidences of domestic violence.
Its efforts would come to nought if the police, as first point of contact in giving
effect to these rights and remedies, remain distant and aloof to them, as the
facts of this case appear to suggest.

[28] This court has in a long line of cases laid down the test for causation in
delict, which consists of two legs, namely factual and legal causation.17
Factual causation is to be determined by application of the 'but for' test. The
evidential hurdle to be crossed by a plaintiff is not required to be established
with certainty ─ a plaintiff need only establish that the wrongful conduct was
probably a cause of the loss. This, said Nugent JA in Minister of Safety and
Security v Van Duivenboden, 'calls for a sensible retrospective analysis of,
what would probably have occurred, based upon the evidence and what can
be expected to occur in the ordinary course of human affairs rather than an
exercise in metaphysics'.18

[29]  In the high court the learned judge found that the evidence had
established that the police’s failure to advise the respondents of their

14 133 of 1993.
15 Omar v Government of the Republic of South Africa & others (Commission for Gender
Equality, Amicus Curiae) 2006 (2) SA 289 (CC) para 14.
16 See, for instance, the Domestic Violence Act of 1995 of New Zealand; the Family Law Act,
1996 of the UK; the Domestic Violence Act of 1996 of Ireland and the Domestic Violence
Protection Act of 2000 of Ontario.
17 See, for example, Minister of Police v Skosana 1977 (1) SA 31 (A) at 34, International
Shipping Company (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 700E-701F; Minister of Safety
& Security v Van Duivenboden 2002 (6) SA 431 (SCA) para 22.
18 Para 24.

remedies under the Act was the critical cause for why they had not pursued
this course. He reasoned thus:
‘Ek is daarvan oortuig op die getuienis dat die gebrek aan inligting ‘n wesenlike,
indien nie ‘n deurslaggewende, rol gespeel het in die besluit om nie hierdie
aangeleentheid verder te voer nie. Ek het pertinent verwys na die wye bevoegdhede
wat die Wet verleen aan ‘n hof om ‘n gesinsinterdik te verleen en wat die inhoud
daarvan kan wees. Veral na die gebeure van 11 Oktober 2002, meen ek dat op die
waarskynlikhede, as die eisers geweet het dat Whitey se regte miskien ingekort kan
word, wat kontak met die kinders betref, dat dit vir hulle moontlik ‘n uitkoms ook sou
kon daargestel het en dat hulle dan positiewe optrede sou geneem het in ‘n poging
om daardie hulpmiddel te bekom.
Ek meen dat op die getuienis en die waarskynlikhede, die feit dat hulle nie daardie
inligting gehad het nie, ‘n belangrike, indien nie deurslaggewende, rol gespeel het dat
hulle dit nie weer verder self opgevolg het nie.
Mnr Van der Merwe se betoog was dat vir die redes deur hulle aangevoer hulle
besluit het om nie daardie hulpmiddel te probeer bekom nie. Met verwysing na die
onvoorspelbaarheid van Whitey se optrede het hy aangevoer dat niks eintlik daarom
draai dat die polisie nooit die eisers ingelig het van wat tot hulle beskikking is
ingevolge die Wet op Gesinsgeweld nie.
Ek stem nie daarmee saam nie. ‘n Mens hoef slegs die Wet te lees, en die nasionale
instruksies, om te sien dat daar ‘n hele infrastruktuur volgens die bedoeling van die
wetgewer daargestel moes word om mense soos veral die tweede eiseres in die
onderhawige geval, by te staan in omstandighede soos waarin sy haar bevind het.
Die vrees wat hulle gehad het, of die gedagte wat hulle gehad het dat Whitey dalk
oor die afgrond gestoot kon gewees het, kon bes moontlik besweer gewees het
indien daar kontak was tussen die eisers en professionele persone wat berading aan
hulle kon verskaf en leiding aan hulle kon verskaf.
Die feit dat dit nie gedoen is nie, is na my oordeel feitlik alleenstaande daarvoor
verantwoordelik en dien as regverdiging dat bevind behoort te word op die feite van
die onderhawige saak dat die nalate van die Polisiediens onregmatig was.’

[30] In my view, the learned judge's reasoning cannot be faulted. It follows
that the respondents established factual causation. Concerning legal
causation the appellant did not advance any grounds to suggest that there
were any policy considerations that stood in the way of a finding against the
appellant. Our courts have in the recent past consistently held the police liable

for failure to perform their statutory duty to protect citizens resulting in harm
being suffered through such failure.19 Legal causation was clearly established
in this case.

[31] What remains is the question whether the respondents were
contributorily negligent. The appellant’s main contention is that they were
negligent in two main respects. First, by failing to obtain the common law
interdict. Second, that Venter acted unreasonably by leaving his firearm in the
wardrobe instead of in a locked safe and also by attempting to gain entry to
the house when contacting the police would have been the more prudent
course of action. In Christa’s case it is contended that she was additionally
negligent in permitting Whitey to enter the house. The second ground can be
disposed of immediately. I do not think it was unreasonable for Venter to have
left his firearm in the bedroom for Christa’s protection, or to have attempted to
gain entry to the house when he perceived that Christa and, possibly the
children, who he thought were at home, were in danger. Christa explained
that she let Whitey into the house because she believed that it would
antagonise him if she did not. Her conduct in this regard was in my view not
unreasonable.

[32]  Before considering whether they were negligent in failing to obtain the
common law interdict it is well to remind oneself of two well-known important
considerations in assessing contributory negligence. The first is that
reasonable conduct cannot be judged with the benefit of hindsight and one
must guard against the drawing of conclusions from ex post facto
knowledge.20 Secondly, care must be taken not to conflate separate elements
of a delictual action such as causation and negligence. I say this because,
having found earlier that the police's failure to inform Venter and Christa of
their rights and remedies under the Act constituted a delictual omission which
was causally linked to the harm they suffered, it does not follow that the
respondents' failure to obtain a common law interdict cannot in law constitute

19 Carmichele v Minister of Safety Security & another 2004 (3) SA 305 (SCA); Minister of
Safety & Security v Luiters 2006 (4) SA 160 (SCA), 2007 (2) SA 106 (CC).
20 Sea Harvest Corporation (Pty) Ltd & another v Duncan Dock Cold Storage (Pty) Ltd &
another 2000 (1) SA 827 (SCA), [2000] 1 All SA 128 para 27.

a degree of negligence on their part. There are no degrees of causation in our
law, but there are degrees of negligence.

[33]  After careful consideration I have come to the conclusion that the
respondents were negligent in failing to obtain the interdict and that this
contributed to the harm. Venter, an ex-policeman, was on his own version
knowledgeable about this type of remedy, albeit only in broad detail. He
explained to Christa its existence and how it operates. They approached the
Brakpan Magistrate's Court and sought to obtain an interdict. They were told
they need a case number. They conceded in cross-examination that they
were able to obtain one by laying a criminal charge of trespassing or
intimidation against the deceased. Moreover, they had access to a case
number on the case docket opened on 11 October 2002. A common law
interdict may well have stopped Whitey from embarking on his destructive
course of action.

[34] In determining which party should bear what portion of the damages,
their respective degrees of negligence must be compared. This is determined
by their respective deviation from the norm of the reasonable person
expressed as a percentage. It is plain that the negligence of the appellant is
far greater than that of the respondents. The SAPS had clear guidelines in the
Act and the Instructions which they failed to adhere to. Over and above this
they have a constitutional duty to protect citizens.21 The respondents' degree
of culpability is much less ─ I would put it at 25 per cent, which would be fair
and equitable in the circumstances. The repeated rebuffs, inaction and
slothfulness to do what the Constitution, the Act and the Instructions
unequivocally demand of SAPS members warrants a far larger apportionment
of blame.

[35] A finding of an apportionment of 25 per cent against the respondents
requires next an evaluation of the degree of negligence on the part of the
appellant.  It does not follow automatically that the percentage is 75 per cent

21 Minister of Safety & Security v Van Duivenboden para 22.

─  a determination of the degree of deviation of the appellant's omission from
the reasonable man standard is required.22  In my assessment the appellant's
degree of fault is indeed three times that of the respondents, ie 75 per cent.

[36] The last aspect for consideration on the merits is the claim on behalf of
the dependants, the two minor children, brought by Christa in her
representative capacity as the third plaintiff. In the particulars of claim it was
alleged that Whitey had traumatised the little girl (without specifying any detail
of such traumatisation) and it was alleged further that Venter arrived home
while the deceased was still detaining Christa and the little girl. These
allegations were denied in the plea. No mention at all was made of any
trauma suffered by the boy.  Christa's evidence was that the girl was present
when Whitey fetched the crossbow from his car. She testified further that at
some stage Whitey handed the handcuffs to the girl to play with in the lounge
which she did. There was no evidence that the girl was present when Whitey
damaged items in the house with the crossbow. The evidence is clear that the
girl was not present in the bedroom when her mother was raped. The
evidence further indicated that the boy was at school during these events. He
was later fetched from school by Whitey and Christa and he and his sister
were dropped off at their aunt's house in Germiston. There is thus no
evidence of any trauma suffered by the children. The court below did not deal
with this aspect al all. When questioned on this, counsel for the respondents
submitted that this was a matter to be left for the trial court when the matter is
remitted on the issue of the quantum of damages. I disagree.  Christa sought
a declarator against the defendant holding him liable for the trauma suffered
by her children. In the absence of any evidence proving that such trauma was
in fact suffered, her action in her representative capacity should therefore
have been dismissed with costs.

22 Jones v Santam Bpk 1965 (2) SA 542 (A) at 555.

[37] The following order is made:
(1)
The appeal is dismissed except to the extent indicated in this order.
(2)
The appellant is to pay the costs of the appeal including the costs of
two counsel.
(3)
The order of the court below is set aside and is replaced by the
following:
'(a) It is declared that the defendant is liable to pay to the first and
second plaintiffs 75 per cent of such damages as they are able to prove or as
may be agreed upon.
(b) The defendant is ordered to pay the first and second plaintiffs'
costs, including the costs consequent upon the employment of two counsel.
(c)  The third plaintiff's claim is dismissed with costs.'

___________

S A MAJIEDT

JUDGE OF APPEAL

APPEARANCES:

For Appellant
:
M P Van Der Merwe
Instructed by
:
The State Attorney,  Pretoria

The State Attorney, Bloemfontein

For Respondent
:
J G Cilliers SC

M van Rooyen
Instructed by
:
P G de Jager Attorney, Pretoria

Van Deventer & Thoabala Inc, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL
MEDIA SUMMARY – JUDGMENT DELIVERED IN COURT
OF APPEAL
29 March 2011

STATUS: Immediate

THE MINISTER OF SAFETY AND SECURITY/ VENTER AND VAN
WYNGAARDT

Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal

1.
The Supreme Court of Appeal today dismissed an appeal by the
Minister of Safety and Security against a judgment of the North Gauteng High
Court, Pretoria, holding the Minister liable for damages suffered by the
respondents for the police's failure to inform the respondents of their rights
and remedies under the Domestic Violence Act, 116 of 1998.

2.
The appeal was successful to a limited extent in that the SCA found
that the respondents were contributorily negligent through their failure to
obtain a common law interdict when it was possible to do so.

3.
The respondents had been the victims of an unlawful attack by the
second respondent's ex-husband. Repeated attempts by the respondents
prior to the attack to obtain assistance from the police against the attacker's
threats and harassment, came to nothing. It was conceded by the Minister
that the police had acted negligently. The SCA held that the police's omission,
viz by not advising the respondents of the rights and remedies available under
the Domestic Violence Act, caused the respondents harm. The court

emphasized the importance of victims of domestic violence being afforded
advice by the police on their rights and remedies under the said Act.

4.
The court determined the parties' respective negligence at 75 per cent
for the Minister and 25 per cent for the respondents. The Minister was
consequently ordered to pay 75 per cent of the respondents' damages as
agreed or proven at a trial. The SCA upheld the appeal as far as the claim of
the third respondent as representative of her minor children was concerned.
The court found that there was no evidence supporting that claim, which
ought to have been dismissed by the trial court. The Minister was ordered to
pay the respondents' costs of appeal including the costs of two counsel.

---Ends---