THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case no: 643/08

THE MINISTER OF SAFETY AND SECURITY
First Appellant
XOLISA DLAKAVU
Second Appellant

and

DIDEKA FLORENCE MADYIBI
Respondent

___________________________________________________________________

Neutral citation:
Minister of Safety and Security v Madyibi (643/08) [2009]
ZASCA 95 (17 September 2009)

CORAM:

BRAND, VAN HEERDEN, PONNAN, MAYA JJA

and TSHIQI AJA

HEARD:

20 August 2009
DELIVERED:
17 September 2009
CORRECTED:

SUMMARY:
Delict – loss of support – wrongfulness – police negligently
failing to dispossess sergeant of official firearm – sergeant taking his own life with
firearm – claim for loss of support by dependants – wrongfulness established

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from:  The High Court, Transkei Division (Petse ADJP sitting as court of
first instance).

The appeal is dismissed with costs, such costs to include those consequent upon the
employment of two counsel.
___________________________________________________________________

JUDGMENT
___________________________________________________________________

VAN HEERDEN and PONNAN JJA (BRAND and MAYA JJA, and TSHIQI AJA
concurring):

[1] On 21 January 2003, Sergeant Pumzile Madyibi (the deceased), who during
his lifetime was the husband of the respondent, Dideka Florence Madyibi, shot and
injured the latter and thereafter took his own life with a state issue firearm that had
been allocated to him as a member of the South African Police Service for use even
when not on duty. Pursuant to the shooting, Ms Madyibi instituted action, both in her
personal capacity as also on behalf of the four minor children born of her union with
the deceased, against the Minister of Safety and Security and Superintendent Xolisa
Dlakavu, the station commissioner of the station to which the deceased had been
attached (the first and second appellants, respectively, in this court).1

1 By the time the appeal came to be heard, Ms Madyibi had regrettably passed away. By then, one of
her children had obtained majority and, by virtue of an order of the Mthatha High Court, a certain
Nombeko Elizabeth Gwadiso was substituted for Ms Madyibi to prosecute the claim on behalf of the
remaining three minor children in these proceedings. Nangamso Madyibi, the major son, was in terms

[2] In her summons Ms Madyibi alleged that the shooting and commission of
suicide by the deceased were caused by the negligence of Dlakavu and/or other
policemen in that he and/or they had failed to dispossess the deceased of his official
firearm, despite having become aware, over a protracted period of time, that the
deceased was unfit to possess a firearm inasmuch as:
(i)
he had previously repeatedly threatened to shoot Ms Madyibi, had pointed a
firearm at her and had threatened violence towards her and other members of
the SAPS;
(ii)
Dlakuvu and/or other policemen knew that the marriage relationship between
the deceased and her had significantly deteriorated, that the family life of the
deceased was anything but stable, and that the deceased had manifested
suicidal tendencies.
Moreover, so the summons alleged, he and/or other policemen had failed to take
steps to protect Ms Madyibi from being injured by the deceased when they could and
should have done so, or to report the violent conduct of the deceased to their
superiors within the SAPS. Accordingly, so it continued, Dlakavu and other
policemen, who should have foreseen the deceased’s wrongful conduct and the
consequent loss, had a legal duty to protect her and the minor children, which they
had breached.

[3] Even though the claims were initially disputed, at the conclusion of a trial
which lasted several days before Petse ADJP in the Mthatha High Court, the typed
transcript of the proceedings records:

of this order substituted for Ms Madyibi in respect of ‘his part of the claim for loss of support’. Nothing
however turns on that and before us no opposition was raised to the substitution.

'MR MBENENGE [Counsel for the Appellants]:
. . . .Having dealt with that portion of the
claim in so far as it relates to the alleged negligence, which is as I have pointed out, now no
longer in dispute, then the defendants accordingly concede Claim A, if I may remind Your
Lordship, Claim A relates to general damages that are said to have been suffered by the
plaintiff consequent upon the shooting incident.
COURT:
Yes.
MR MBENENGE:
So Claim A in its entirety is no longer being resisted. Then for now
Your Lordship should allow us to say nothing about Claim B, Claim C in so far as it relates to
the plaintiff suing in her representative capacity, is also being conceded. Let me say that
again, M'Lord.
COURT:
Conceded?
MR MBENENGE:
Yes
COURT:
Thank you.
MR MBENENGE:
In other words plaintiff's claim for loss of support, her personal claim
for loss of support is not conceded, [what] is being conceded is the claim brought by the
plaintiff for and on behalf of the minor children . . .  So much for Claim C. Then, M'Lord,
flowing from that is the fact that the defendants made no concession with regard to the
plaintiff's . . . Claim B. Then finally the defendants do not dispute being liable for costs of suit
hitherto or up to and including today, that is costs of the hearing, the liability aspect.'

Later, and in order to further clarify the position Mr Mbenenge stated:
'Your Lordship will realise that what the defendants were doing in fact, was to place on
record that which is not being resisted anymore. Less – it was less of making an offer to the
plaintiff as seems to have been understood, so the understanding really is that we stand up
to record what it is that is no longer being resisted.'

On the day that the matter was argued, counsel for the appellants informed
the trial court that the appellants also admitted liability for Ms Madyibi’s claim for loss
of support in her personal capacity. Thus all that remained of the lis between the

parties was Claim B, being Ms Madyibi's claim for loss of income and her impairment
of earning incapacity.

[4] After taking some time to consider the matter, Petse ADJP handed down a
fully reasoned judgment in which he issued the following order:
'1
The First Defendant [the Minister of Safety and Security] is held liable to compensate
the Plaintiff [Ms Madyibi] both in her personal and representative capacities for such
damages as the Plaintiff may prove to have suffered in respect of the following:
1.1
pain and suffering, loss of amenities of life, past and future medical and hospital
expenses;
1.2
loss of support;
1.3
loss of earning capacity.
The First Defendant shall . . . pay all the costs of suit incurred to date of this order.'

[5] Thereafter, as the learned judge in the court below put it – 'To my utter
amazement ..., it came to my attention that the defendants had filed an application
for leave to appeal against part of my judgment'. Petse ADJP nevertheless ultimately
granted leave to the appellants to appeal to this court against that part of his
judgment relating to Ms Madyibi's claim for loss of support, both in her personal as
also in her representative capacities.

[6] In persuading the court below to grant leave, the submission was that the
issues of negligence and wrongfulness had in error been conflated by counsel on
behalf of the appellants. Accordingly, so the submission went, the element of
wrongfulness not having been proved by Ms Madyibi, the court below ought not to
have found in her favour.

[7] On appeal it was argued that the distinction between negligence and
wrongfulness had clearly been overlooked by the court below, with the result that
those issues had been conflated. Accordingly, so the argument proceeded, the
concessions that had been made by counsel pertained only to negligence and did
not embrace wrongfulness. In the result, there remained a live issue for
determination by the court below, as also before us on appeal. All of that we shall
assume, without deciding, in favour of the appellants.

[8] As best as we can discern the appellants' case, it is that the present matter is
indistinguishable from that of Brooks v Minister of Safety and Security 2009 (2) SA
94 (SCA). In our view, however, counsel's reliance on Brooks is entirely misplaced
for the following reasons. First, in this case the deceased died by his own hand,
unlike the breadwinner in Brooks who was very much alive but had been rendered
unable to support his dependant as a result of his incarceration in consequence of
the law having taken its course. Second, suicide is not a crime, while the
breadwinner in Brooks had, on the other hand, rendered himself incapable of
supporting his dependant by perpetrating a most heinous crime. There were thus
strong policy reasons in that case that militated against recognising a claim there.
Third, in Brooks a basic ingredient for the dependant's action, namely the death of
the breadwinner, was absent. Fourth, at the risk of stating the obvious, for as long as
the breadwinner was alive, conduct, even were it to have been found to be wrongful,
would only have been wrongful vis-à-vis the breadwinner and not the dependant –
thus, for as long as the breadwinner had a right of action, there could also not have

existed a separate and independent right of action in the dependant for loss of
support.

[9] It follows that, given the admittedly negligent conduct one encounters here,
the appeal must fail: in our view, the conduct complained of was plainly wrongful and
considerations of public or legal policy consistent with our constitutional norms would
certainly demand the imposition of a legal duty in a matter such as this (see, for
example, Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006
(3) SA 138 (SCA) para 10; Steenkamp NO v Provincial Tender Board, Eastern Cape
2007 (3) SA 121 (CC) paras 39 and 41).

[10] In the result the appeal is dismissed with costs, such costs to include those
consequent upon the employment of two counsel.

_________________
B J VAN HEERDEN
JUDGE OF APPEAL

_________________
V N PONNAN
JUDGE OF APPEAL

APPEARANCES:

For Appellant:

S M Mbenenge SC

P h s zilwa

Instructed by:

The State Attorney

c/o Jolwana Mgidlana Inc.

Mthatha

The State Attorney

Bloemfontein

For Respondent:

N Dukada SC

M n Hinana

Instructed by:

V V Msindo and Associates

Mthatha

Ponoane Attorneys

Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

STATUS

Immediate

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

The Minister of Safety and Security & another v Madyibi
(643/08) [2009] ZASCA 95 (17 September 2009)

Media Statement

Today the Supreme Court of Appeal ('SCA') dismissed an appeal by the Minister of Safety and Security and
one other against a judgment of Petse ADJP in the Transkei High Court, which allowed a claim for loss of
support by the widow and children of a police sergeant who had used his state issue firearm to shoot and
injure his wife and thereafter to take his own life.

On 21 January 2003, Sergeant Pumzile Madyibi (‘the deceased’) shot and injured his wife and thereafter
took his own life with a firearm that had been allocated to him as a member of the South African Police
Service for use even when not on duty. His widow, Ms Dideka Madyibi, thereafter instituted action, both in
her personal capacity as well as on behalf of the four minor children born of her marriage with the
deceased, against the Minister of Safety and Security and Superintendent Xolisa Dlakavu, the station
commissioner of the station to which the deceased had been attached. She claimed general damages,
damages for loss of income and impairment of earning capacity, and damages for loss of support for both
herself and her minor children. All these claims succeeded in the Transkei High Court.

Ms Madyibi alleged that the shooting and commission of suicide by the deceased were caused by the
negligence of the police who had failed to dispossess the deceased of his official firearm despite their
knowledge, gained over a protracted period of time, that: the deceased had previously repeatedly
threatened to shoot his wife, had pointed a firearm at her and had threatened violence towards her and
other members of the SAPS;  that the marriage relationship between the deceased and his wife had
deteriorated significantly and that his family life was anything but stable; and that the deceased had
manifested suicidal tendencies.

The only issue on appeal was whether the conduct of the police, in failing to remove the deceased’s official
firearm from him in these circumstances, was wrongful for the purposes of his dependants’ claim for loss of
support. The SCA held that the conduct complained of was plainly wrongful and that considerations of
public or legal policy consistent with our constitutional norms certainly demanded the imposition of a legal
duty on the police in a matter such as this one.

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