Minister of Safety & Security v Hamilton

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Minister of Safety and Security v Hamilton [1] is an important case in South African law, in particular the law of delict, but with implications also for criminal law. It was heard before the Supreme Court of Appeal (SCA) on 21 August 2003, with judgment handed down on 26 September.

Contents

Facts

In terms of the Arms and Ammunition Act, [2] one Erna Lochiel McArdell in September 1993 applied successfully for a gun licence. Ten months later, during a parking-lot altercation, she shot Hamilton in the back.

Hamilton sustained a serious spinal injury, rendering him "permanently wheelchair-bound," [3] and some three years later claimed damages against the Minister of Safety and Security. The police, he argued, had been in negligent breach of their "legal duty to exercise reasonable care in considering, investigating, recommending and ultimately granting McArdell's application for a firearm licence." [4] They had incurred vicarious liability, in that their dereliction of duty, unwittingly but effectively, had enabled McArdell's assault.

The applicable delictual action was the lex Aquilia , and all the essential elements of delict were present:

Judgment

The SCA dismissed the Minister's appeal and upheld the decision of the High Court, [5] so that the Minister was found to be liable to Hamilton for the harm suffered in McArdell's attack. The police were found to have

a legal duty to take proper measures to screen an application for a firearm licence by making such enquiries as are reasonable in the circumstances to corroborate the veracity of the information furnished to them by the applicant in relation to his or her physical, temperamental and psychological fitness to possess a (potentially lethal) firearm. [6]

The court believed that, had not the police been negligent in this regard—that is, had they taken the "reasonable pre-caution" [7] detailed above—they would have come to the view that McArdell ought not to receive a firearm licence. The dangers were obvious:

A reasonable person in the position of the [police] would have foreseen that, in the absence of any such corroborative enquiries, an applicant for a firearm licence who [...] was clearly unfit to possess a firearm, might have a firearm licence issued to him or her and that this might well result in harm being in-flicted on a member of the general public. [8]

Finally, the court determined, having regard to considerations of "reasonableness, fairness or legal policy," [9] that Hamilton's loss was not too remote to permit a claim for damages.

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A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.

Delict is a term in civil and mixed law jurisdictions whose exact meaning varies from jurisdiction to jurisdiction but is always centered on the notion of wrongful conduct.

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<span class="mw-page-title-main">Canadian tort law</span> Aspect of Canadian law

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References

Case law

Legislation

Notes

  1. ↑ 2004 (2) SA 216 (SCA).
  2. ↑ Act 75 of 1969, s 3(1).
  3. ↑ Para 2.
  4. ↑ Para 4.
  5. ↑ Para 47.
  6. ↑ Para 32.
  7. ↑ Para 40.
  8. ↑ Para 39.
  9. ↑ Para 46.
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