THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case no: 036/08

AARON JONATHAN BROOKS

Appellant

and

THE MINISTER OF SAFETY AND SECURITY

Respondent

___________________________________________________________________

Neutral citation:
Brooks v Minister of Safety and Security

(036/08) [2008] ZASCA 141 (27 November 2008)

CORAM:

MPATI P, FARLAM and PONNAN JJA, KGOMO and

MHLANTLA AJJA

HEARD:

11 November 2008
DELIVERED:
27 November 2008

Summary:
Delict – liability of State - for loss of support in consequence of the
incarceration of the breadwinner

_________________________________________________________________________

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from:  The High Court (Cape Town) (HJ Erasmus J sitting as court of first
instance).
The appeal is dismissed with costs, including those consequent upon the
employment of two counsel.

___________________________________________________________________

JUDGMENT
___________________________________________________________________

PONNAN  JA  (Mpati P, Farlam JA, Kgomo and Mhlantla AJJA concurring):

[1] This appeal has its genesis in events that formed the subject matter of
Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA). Those
events, which are offered as no more than a backdrop and which require no
elaboration at this stage, were succinctly set out by Nugent JA (para 1) as follows:
'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.'

[2] The appellant is Aaron, the son of Neil Brooks. His grievance would appear to
lie against his father, but like Mr Van Duivenboden, he has chosen instead to sue the
State, represented by the respondent (the Minister of Safety and Security) for the
recovery of damages. The basis of this claim, once again like that of Van
Duivenboden, is that the police were negligent in failing to take the steps available to
them in law to deprive Brooks of his firearms. Had that been done, so it is postulated,
the tragedy would not have occurred.

[3] The particulars of claim allege:
'As a consequence of the shooting incident as aforesaid, the said Brooks was charged and
convicted of various offences, including murder, as a result of which he was given a
sentence of 20 years of imprisonment, which he still serves.
As a result thereof he has been rendered permanently unable to support Plaintiff as he
would otherwise have done.'

[4] Of the total amount claimed by the plaintiff, R168 000 lies in respect of 'loss of
support from his father' and R2 400 000 in respect of 'loss of a proper education
opportunity as a result of loss of support'. That portion of the plaintiff's particulars of
claim was met with an exception. Of the five grounds initially raised, the following
three – without the remaining two having been specifically abandoned – were
advanced in the court below: first, that no delict had been committed against the
appellant’s breadwinner; second, the respondent’s servants did not act wrongfully;
and, third, there was no causal nexus between the omission complained of and the
loss suffered. The second ground was upheld by H J Erasmus J in the High Court
(Cape Town), who issued the following order:
‘1
The exception to the plaintiff’s claim for loss of support and for loss of an education
opportunity arising from the incarceration of his father, Neil Brooks, is upheld with
costs, including the costs occasioned by the employment of two counsel.

The plaintiff is given leave, if so advised, to file amended particulars of claim within
one month.’
The judgment is reported as Brooks v Minister of Safety and Security 2008 (2) SA
397 (C). The present appeal is with the leave of the court below.

[5] The exception raises the issue of wrongfulness, which is a sine qua non of
Aquilian liability. Negligent conduct giving rise to damage is not per se actionable. It
is only actionable if the law recognises it as wrongful. As Brand JA stated in
Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA
138 (SCA) para 10:
'Negligent conduct manifesting itself in the form of a positive act causing physical damage to
the property or person of another is prima facie wrongful. In those cases, wrongfulness is
therefore seldom contentious. Where the element of wrongfulness becomes less
straightforward is with reference to liability for negligent omissions and for negligently caused
pure economic loss…. In these instances, it is said, wrongfulness depends on the existence
of a legal duty not to act negligently. The imposition of such a legal duty is a matter for
judicial determination involving criteria of public or legal policy consistent with constitutional
norms. ...'
Put somewhat differently: ‘The negligent causation of pure economic loss is prima
facie not wrongful in the delictual sense and does not give rise to liability for
damages unless policy considerations require that the plaintiff should be
recompensed by the defendant for the loss suffered’ (per Harms JA in Steenkamp
NO v Provincial Tender Board, Eastern Cape 2006 (3) SA 151 (SCA) para 1).

[6] At the outset it is necessary to investigate the nature and scope of the action
brought by the appellant. It is undoubtedly a claim by a dependant for loss of
support. According to existing South African law, such a claim is available to a
dependant against a person who has unlawfully killed a breadwinner, who was
legally liable to support him/her (Legal Insurance Company Ltd v Botes 1963 (1) SA
608 (A) at 614B). The nature of a dependant's claim, in contradistinction to a
damages action for bodily injuries, was dealt with by Corbett JA in Evins v Shield
Insurance Co Ltd 1980 (2) SA 814 (A) at 838H-839C in these terms:
‘In the case of an Aquilian action for damages for bodily injury . . ., the basic ingredients of
the plaintiff's cause of action are (a) a wrongful act by the defendant causing bodily injury,
(b) accompanied by fault, in the sense of culpa or dolus, on the part of the defendant, and (c)

damnum, ie loss to plaintiff's patrimony, caused by the bodily injury. The material facts which
must be proved in order to enable the plaintiff to sue (or facta probanda) would relate to
these three basic ingredients and upon the concurrence of these facts the cause of action
arises. In the usual case of bodily injury arising from a motor accident this concurrence
would take place at the time of the accident. On the other hand, in the case of an action for
damages for loss of support, the basic ingredients of the plaintiff's cause of action would be
(a) a wrongful act by the defendant causing the death of the deceased, (b) concomitant
culpa or (dolus) on the part of the defendant, (c) a legal right to be supported by the
deceased, vested in the plaintiff prior to the death of the deceased, and (d) damnum, in the
sense of a real deprivation of anticipated support. The facta probanda would relate to these
matters and no cause of action would arise until they had all occurred.'

[7] The action is sui generis and, as it was put by Innes CJ in Jameson's Minors v
Central South African Railways 1908 TS 575 at 583-4:
'Our law, while recognising no right of action on behalf of the deceased's estate, gives to
those dependent on him a direct claim, enforceable in their own names, against the wrong-
doer. This is a right not derived from the deceased man or his estate, but independently
conferred upon members of his family.'
An essential and unusual feature of the remedy, according to Corbett JA (Evins at
837H-838B)
‘ ... is that, while the defendant incurs liability because he has acted wrongfully and
negligently (or with dolus) towards the deceased and thereby caused the death of the
deceased, the claimant (the dependant) derives his right of action not through the deceased
or from his estate but from the facts that he has been injured by the death of the deceased
and that the defendant is in law responsible therefor. Only a dependant to whom the
deceased was under a legal duty to provide maintenance and support may sue and in such
action the dependant must establish actual patrimonial loss, accrued and prospective, as a
consequence of the death of the breadwinner. These principles are trite and require no
citation of authority.’

[8] The scope of the action is therefore clear - it is due to third parties who do not
derive their rights through the deceased or his/her estate but rather from the fact that
they have been injured by the death of their breadwinner and that the defendant is in
law responsible for such death (Union Government (Minister of Railways) v Lee 1927
AD 202). Here we have been invited to extend the common law action for damages
for loss of support to a person in the position of the appellant. That, it has been

submitted, would be an incremental step to ensure that our common law evolves in
accordance with the norms and values as reflected in our Constitution and the
judicial pronouncements of this court, particularly in Van Duivenboden.

[9] The first ingredient of a plaintiff's cause of action for loss of support is a
wrongful act by the defendant causing the death of the breadwinner. To satisfy that
requirement a plaintiff is required to prove: (a) a wrongful act by the defendant; (b)
the death of the deceased; and (c) a causal nexus between (a) and (b).  It has been
argued that the considerations relied upon in Van Duivenboden in finding in favour of
the existence of a legal duty on the part of the police, apply with equal force to this
case and there is no good reason why that duty should not be extended to the
appellant. This hypothesis, as I shall endeavour to demonstrate, is plainly untenable.

[10] Notwithstanding a measure of overlapping, there is a basic difference
between a claim for loss of support and that available to a plaintiff who has suffered
bodily injury or sustained damage to his/her property as a result of the wrongful and
negligent (or intentional) conduct of the defendant. In the latter case the action lies
for a wrongful act committed in respect of the plaintiff's person or property and with
culpa (or dolus) vis-à-vis the plaintiff. The distinction, as Corbett JA pointed out in
Evins (at 839C – G), is significant. The facta probanda in a bodily injury claim differ
substantially from the facta probanda in a claim for loss of support. Proof of bodily
injury to the plaintiff is basic to one; proof of the death of the breadwinner is basic to
the other. Moreover, even where both claims flow from the same incident, each
cause of action may arise at a different time. The cause of action in respect of bodily
injury will normally arise at the time of the event giving rise to the claim, whilst the
cause of action for loss of support will arise only upon the death of the deceased
which may occur some considerable time later.

[11] That distinction is not purely theoretical in this case. It explains why Van
Duivenboden succeeded and the appellant must fail. Van Duivenboden’s claim was
one for compensation for bodily injuries sustained by him during the events giving
rise to the claim – the shooting incident. The appellant’s claim on the other hand is
located elsewhere. It is one for loss of support, which is alleged to have occurred in
consequence of the incarceration of the breadwinner. But that could hardly give rise

to a claim. Plainly, the deprivation of the breadwinner’s liberty, which renders him
incapable of supporting the appellant, is a consequence of the law simply having
taken its course. The breadwinner’s incarceration followed upon his arrest,
prosecution, conviction and sentence for the crimes that he had committed. The
lengthy period of imprisonment and the consequent deprivation of his liberty was
expressly sanctioned by law. Notwithstanding the undoubted hardship that this must
have caused the appellant, it can hardly give rise to an action for loss of support.

[12] It has been submitted that ‘the fact that the appellant’s father’s capacity to
support the appellant was extinguished, not by his death or injury, but by his
incarceration, makes no difference in principle’. In De Vaal v Messing 1938 TPD 34,
the court was asked to extend the dependant’s action from the case of fatal to non-
fatal injuries, in circumstances where the breadwinner was injured in a collision and
disabled to the extent of 75 per cent in his wage-earning capacity. It declined to do
so. It reasoned that it is clear that the breadwinner would in those circumstances be
entitled as against the wrongdoer to compensation for the full extent of the
diminution in his earning capacity and that any claim by his dependants would thus
be met by the simple answer that they had suffered no damage.

[13] In the present factual matrix, the claim is even more tenuous than that
encountered in De Vaal. Here, the breadwinner by his own intentional act has
rendered himself incapable of supporting his dependant. That notwithstanding, even
if one were to assume for present purposes in the appellant’s favour, that the
conduct complained of by the servants of the respondent is indeed wrongful, for as
long as the breadwinner is alive such conduct would only be wrongful vis-à-vis the
breadwinner and not the dependant. It follows that so long as a right of action exists
in a breadwinner there cannot also be a right of action in his/her dependants for loss
of maintenance (Tucker's Dependants v Sub Nigel G.M. Co. 1929 (13) PH J7
(WLD)). For, when the injured breadwinner himself/herself has a right to obtain
compensation for the injury suffered, the necessary proof that the dependants – who
look to their breadwinner for support and whose claim has not been extinguished –
have suffered loss owing to that injury cannot also be forthcoming. Quite obviously, if
both the dependant and the breadwinner were to be entitled to recover

compensation, the person causing the injury would be liable to pay compensation
twice over in respect of the same damage.

[14] One of the reasons advanced in De Vaal for refusing to extend the common
law dependant’s action to the plaintiff in that case was that such an extension would
produce the anomaly that a person in De Vaal’s position could, by his own
contributory negligence, create in favour of his dependants a cause of action that
would otherwise not exist in the absence of such negligence.  As Greenberg J
pointed out (at 39):
‘… we would have the extraordinary result that in the case of a non-fatal injury, the other
party’s liability to the dependants is created by the bread-winner’s contributory negligence;
this conjures up the picture of a trial case in which the bread-winner in his evidence will
stoutly maintain that he too was to blame for the collision while the defendant will be equally
concerned to convince the Court that he alone is the culprit and that the injured was above
reproach.’
That anomaly would be exacerbated, where – as here – there is intentional
wrongdoing by the breadwinner, who by his own act has rendered himself incapable
of supporting his dependants.

[15] Of De Vaal v Messing, Schreiner JA stated:
‘ ... [t]hough it is not a decision of this Court [it] furnishes support for the view that, even in
the field of dependants’ action, the law takes a conservative view on the subject of the
expansion of the Aquilian remedy beyond what the authorities have recognised in the past.’
(Union Government v Ocean Accident and Guarantee Corporation Ltd 1956 (1) SA
577 (A) at 586H-587A).

[16] It is true that in matters of human behaviour we are often told not to judge by
results, but in law, when considering whether a contention is well-founded, the
absurdity of the results to which it will give rise is not an immaterial consideration.
That a person in the position of Brooks could by his own intentional wrongful act
create in favour of his dependants a cause of action that would not otherwise exist is
nothing short of preposterous; indeed in my view that would be a dangerous
proposition. After all it is a trite principle of our law, that a person should not be
allowed to benefit from his/her own wrongful act.

[17] Considerations of legal policy, coherence and consistency manifestly
informed the decision in De Vaal. And, whilst our system of law is a living system,
capable of adaptation to changing circumstances, I am not satisfied that jettisoning a
basic ingredient of the dependant’s action is warranted on the grounds that to do so
would be to keep in step with the prevailing attitudes of society. The remedy in its
present ambit is sui generis and anomalous and extending it to a person in the
position of the appellant would accentuate the anomaly as in this case – unlike in De
Vaal - not even bodily injury to the breadwinner can be shown. This court cannot
give its imprimatur to what is being sought here, as to do so would not be to extend
legal principle but to go counter to it.  It follows that the appeal must fail.

[18] In the result the appeal is dismissed with costs, including those consequent
upon the employment of two counsel.

_________________
V M  PONNAN
JUDGE OF APPEAL

APPEARANCES:

For Appellant:

R S van Riet SC

J H Roux SC

Instructed by:

Heyns and Partners Inc

Goodwood

Honey Attorneys

Bloemfontein

For Respondent:

A Schippers SC

R Jaga

Instructed by:

The State Attorney

Cape Town

The State Attorney

Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

27 November 2008

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

Brooks v The Minister of Safety and Security
(036/2008) [2008] ZASCA 141 ( 27 November 2008)

Media Statement

During October 1995, Neil Brooks went on a shooting spree in Bothasig on the Cape Peninsula.
Those events formed the subject of the judgment of the Supreme Court of Appeal (SCA) in Minister of
Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA).  Today the SCA dismissed an
appeal by his son Aaron Brooks, who had instituted proceedings in the Cape High Court against the
Minister of Safety and Security for the recovery of damages.  The basis of his claim  – like that of Van
Duivenboden – is that the police were negligent in failing to take steps available to them in law to
deprive Neil Brooks of his firearms.  Had that been done, so it has been postulated, the tragedy would
not have occurred.  The appellant alleges that as a consequence of the shooting incident his father
was sentenced to imprisonment for a term of 20 years, which he still serves. As a result thereof he
has been rendered permanently unable to support the appellant as he would otherwise have done.
Of the total amount claimed by the appellant, R168 000 is in respect of loss of support from his father
and R2 400 000 in respect of loss of a proper education opportunity as a result of loss of support.
That portion of the appellant's particulars of claim was met with an exception, which was upheld by
the Cape High Court. The High Court granted him leave to appeal to SCA. The nature of the
appellant's claim, according to the SCA, was one by a dependant for loss of support.  According to
existing South African law, a basic ingredient of the dependant's action is the death of the
breadwinner. The SCA reasoned that Van Duivenboden's claim was one for compensation for bodily
injuries sustained by him during the events giving rise to the claim, namely, the shooting incident.
The appellant's claim on the other hand was located elsewhere.  It was one for loss of support, which
is alleged to have occurred in consequence of the incarceration of the breadwinner.  The SCA held
that that could hardly give rise to a claim, as the lengthy period of imprisonment and the consequent
deprivation of the breadwinner’s liberty was expressly sanctioned by law.  Moreover, according to the
SCA, for as long as the breadwinner is alive, should it be proved that the conduct on the part of the

respondent's servants was wrongful, such conduct would only be wrongful vis-à-vis the breadwinner
and not the dependant.  It followed, that so long as a right of action existed in a breadwinner, there
could not also be a right of action in his/her dependant's for loss of maintenance.  The SCA
accordingly held that it would be nothing short of preposterous that a person in the position of Brooks
could by his own intentional wrongful act create in favour of his dependant a cause of action that
would otherwise not exist.  It thus dismissed the appeal with costs.

--- ends ---