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FORM A

FILING SHEET FOR TRANSKEI DIVISION JUDGMENT

PARTIES:

MINISTER OF SAFETY AND SECURITY & ANOTHER vs FLORENCE DIDEKA MADYIBI

4. Case Number: 1034/2004

5. High Court: TRANSKEI DIVISION

DATE HEARD: 04 SEPTEMBER 2008

DATE DELIVERED: 30 OCTOBER 2008

JUDGE(S): PETSE ADJP

LEGAL REPRESENTATIVES –

Appearances:

7. For the Appellants(s): ADVOCATE S.M. MBENENGE SC

(with him ADVOCATE P.H.S. ZILWA)

7. for the Respondent(s): ADVOCATE N.K. DUKADA SC

(with him ADVOCATE M.N. HINANA)

Instructing attorneys:

9. Appellant(s): THE STATE ATTORNEY, EAST LONDON

10. Respondent(s): MESSRS V.V. MSINDO & ASSOCIATES

CASE INFORMATION -

12. Nature of proceedings : Application for leave to appeal

13. Topic:

14. Key Words:

IN THE HIGH COURT OF SOUTH AFRICA

[TRANSKEI DIVISION]

CASE NO. 1034/2004

In the matter between:

MINISTER OF SAFETY AND

SECURITY FIRST APPLICANT

SUPERINTENDENT XOLISA

DLAKAVU SECOND APPLICANT

And

FLORENCE DIDEKA MADYIBI RESPONDENT

IN RE :

FLORENCE DIDEKA MADYIBI PLAINTIFF

And

MINISTER OF SAFETY AND

SECURITY FIRST DEFENDANT

SUPERINTENDENT XOLISA

DLAKAVU SECOND DEFENDANT

__________________________________________________________

JUDGEMENT ON APPLICATIONS FOR LEAVE TO APPEAL AND LEAVE TO EXECUTE THE JUDGMENT SOUGHT TO BE APPEALED AGAINST IN RELATION TO THE COSTS OF SUIT

__________________________________________________________

PETSE, ADJP:

[1] There are two applications that served before me simultaneously in relation to this matter on 4 September 2008.

[2] The first one is an application for leave to appeal by the Minister of Safety and Security and Another against part of my judgment delivered on 24 April 2008. The other one is an application by Ms Florence Dideka Madyibi which, although not readily apparent therefrom it can nevertheless be deduced from the content thereof, is for leave to execute the judgment sought to be appealed against by the applicants in the first application in so far as it relates to the costs of suit awarded in her favour.

[3] I have deemed it convenient to deal with both applications in a single judgment given that both applications were, as I have already alluded to above, argued simultaneously.

[4] I shall for the sake of convenience use the same titles as were assigned to the parties at the trial.

[5] It is my judgment that it would be profitable and indeed conduce to a better understanding of the vexed question that I am required to unravel in the application for leave to appeal if I were to quote liberally, albeit to the extent necessary, portions of the plaintiff’s particulars of claim that are germane to the legal point now sought to be argued by the defendants (so late in the day if I may say so) in the event that leave to appeal is granted. The following is alleged in the plaintiff’s particulars of claim :

“The plaintiff is Florence Dideka Madyibi who :

1. is an adult female;

2. is an unemployed widow;

3. was born on 11 July 1967;

4. resides at Ngqeleni Village, Ngqeleni district; and

5. sues herein in her personal capacity and her capacity as a natural mother and guardian of the following children, namely :

1. Zona Madyibi, born on 14 November 1991;

2. Asipe Madyibi, born on 7 July 1994;

3. Nangamso Madyibi, born on 17 March 1990; and

4. Sibabalwe Madyibi, born on 3 February 1999.

(hereinafter referred to as “the minor children”).

2.

The first defendant is Minister of Safety and Security for the Government of the Republic of South Africa whose address for purpose of service is care of the State Attorney, Oxford Street, East London.

3.

The second defendant is Superintendent Xolisa Dlakavu, who;

1. is an adult male;

2. is a policeman in the South African Police Service; and

3. is a Station Commissioner for Ngqeleni Police Station, Ngqeleni district.

4.

At all times material hereto :

1. the plaintiff was married to a certain Pumzile Madyibi (hereinafter referred to as “the deceased”);

2. the deceased was the natural father of the minor children;

3. the deceased was employed by the first defendant as a Sergeant in the South African Police Service stationed at Ngqeleni Police Station, Ngqeleni district;

4. the second defendant was employed by the first defendant as a Superintendent in the South African Police Service;

5. the second defendant was in charge of Ngqeleni Police Station and exercising powers over all the policemen who were attached to Ngqeleni Police Station.

5.

On 21 January 2006, and at Ngqeleni Village, Ngqeleni district, the deceased :

1. shot the plaintiff on the neck with a firearm;

2. thereafter shot and killed himself with a firearm.

6.

The firearm used by the deceased in shooting the plaintiff and killing himself was :

1. owned by the first defendant; and

2. under the control of the second defendant.

7.

The shooting of plaintiff and commission of suicide by the deceased was caused by negligence of the second defendant in the following respects :

1. he failed to seize the official firearm from possession of the deceased despite previous repeated requests by the plaintiff and other members of the South African Police Service to do so;

2. he became aware that the deceased had previously repeatedly threatened to shoot the plaintiff and/or manifested threats of violence towards plaintiff and other members of the South African Police Service but failed to take steps;

3. he allowed the deceased to continue using the official firearm well knowing that the deceased was unfit to possess a firearm;

4. he failed to take measures to re-assess the fitness of the deceased to possess an official firearm when not on duty;

5. he allowed the deceased to be in possession of the firearm even after working hours well knowing that the deceased had adopted a violent attitude towards plaintiff and was ill-tempered;

6. he knew that the marriage relationship between the plaintiff and deceased had significantly deteriorated and the family life of the deceased was not stable;

7. he knew that the deceased was suffering from depression and alcoholic problems;

8. he failed to institute a disciplinary inquiry against the deceased upon receiving complaints from the plaintiff of pointing a firearm and threats of violence by the deceased;

9. he failed to ensure that criminal charges were preferred against the deceased for pointing the plaintiff with a firearm;

10. he failed to take measures to protect the plaintiff from being injured by the deceased when he had means and ability to do so;

11. he failed to report the violent conduct of the deceased to higher authorities in the South African Police Service;

12. he knew that the deceased had suicidal tendencies, but failed to ensure that the deceased was deprived of possession of official firearm.

8.

Alternatively, the shooting of plaintiff and commission of suicide by the deceased was caused by negligence of the policemen, whose full names and further particulars are unknown to the plaintiff, in one or more of the ways set out in paragraph 7 hereof.

9.

1. The second defendant and/or policemen referred to in paragraph 8 hereof had a legal duty;

1. to protect the plaintiff from being injured by the deceased; and

1. to prevent the deceased from killing himself with an official firearm;

1. The second defendant and/or policemen should have foreseen;

1. the shooting of plaintiff and commission of suicide by the deceased; and

2. the loss of support by the minor children as a result of commission of suicide by the deceased.

3. the second defendant and/or policemen breached the legal duty owed to the plaintiff and minor children in one or more of the ways set out in paragraph 7 hereof.

10.

CLAIM A

Plaintiff as a result of being shot at by deceased at a close (sic) range suffered a serious bullet wound on the neck which resulted in plaintiff being operated on and to a very large extent damaged the vocal part of her body.

11.

Consequently plaintiff had to be hospitalized for more than three (3) months at St Mary’s Hospital Umtata.

12.

As a result of the second defendant omission which resulted to (sic) the shooting of plaintiff by the deceased and sustenance of a bullet wound as detailed in paragraph 10 above, plaintiff suffered the following damages,

1. Pain and suffering for more than a

year subjected to, a number of further

operations and observations

(temporal) = R100 000.00

2. Discomfort for a period of eight

(8) months using a breathing cube (sic)

including hospitalization = R 70 000.00

12.3 Past hospital expenses as per

Medical bills presented = R 54 106.35

12.4 Estimated future medical

expenses as per doctor’s

assessment = R100 000.00

13.

CLAIM B

Plaintiff is a qualified teacher by profession which profession by its very nature requires an ability to speak and communicate clearly.

14.

From the date of the shooting incident plaintiff is not able to speak and/or communicate clearly and as such is not employable as a teacher.

15.

Plaintiff has therefore suffered damages in the form of a loss of earning capacity which is estimated at R1000 000.00 (One Million Rands) being fair and reasonable compensation which she holds first defendant vicariously liable for.

16.

CLAIM C

As a result of the death of the plaintiff’s husband occasioned by second defendant’s omission plaintiff suffered loss of support in the sum of three Million Rand (R3 000 000.00) being fair and reasonable compensation in respect of herself, four (4) minor kids (sic) fathered by her late husband being divisible as follows:-

Plaintiff = R600 000.00

Zona Madyibi = R600 000.00 :Born on

the 14^th November 1991

Asiphe Madyibi = R600 000.00 : Born on

the 7^th July 1994

Nangamso Madyibi = R600 000.00 :Born on

the 17^th March 1990

Sibabalwe Madyibi = R600 000.00 : Born on

the 3^rd February 1999

17.

First defendant is therefore vicariously liable to plaintiff in the total sum of R4 324 106.35 (Four Million Three Hundred and Twenty Four Thousand One Hundred and Six Rands Thirty Five Cents)

18.

Plaintiff had complied with requirements of Act 40 of 2002.

19.

Despite demand first defendant refuses / fails or neglects to pay the said sum of money.

WHEREFORE plaintiff prays for judgment in the following terms :

1. ………………………………………………………………... .

2. ………………………………………………………………... .

3. ………………………………………………………………... .

4. ……………………………………………………………... .”

[6] I consider it timely at this juncture to mention that at the commencement of the trial plaintiff’s counsel handed up in Court by agreement with the defendants’ legal team the plaintiff’s bundle of documents which, inter alia, incorporated a copy of Provincial Order No 3 of 1998 issued by the Police Provincial Commissioner of the Province of the Eastern Cape (“the Provincial Order”) on 24 April 1998 which provides the regulatory framework for, inter alia, the criteria that are required to be satisfied before a member of the South African Police Service (SAPS) can be issued with a state firearm and the circumstances under which a decision to issue a member of SAPS with a state firearm may be rescinded. Whilst on this Provincial Order I need to correct an error I made in para [8] of my judgment of 24 April 2008. I said therein that the Provincial Order is No 2 of 1998 and that it was issued on 27 June 1998. It needs to be clarified that both that number and date recorded in my judgment of 24 April 2008 are incorrect. The correct number of the Provincial Order under discussion therein is in actual fact No 3 and the correct date of issue thereof is the 24^th April 1998.

[7] Clause Nos 5, 6, 7 and 8 of the Provincial Order, set out, inter alia, the duties of the Committee (that considers and approves applications by members to be issued with state forearms other than for official purposes); appeals against refusal of application or reversal of a previous decision to grant permission to possess a state firearm, the criteria to be considered by the Committee or Area Commissioner in the event of an appeal to the latter and lastly the withdrawal of previously granted permission to possess a state firearm on account of serious misconduct.

[8] Again I consider that it would be profitable if I were to quote liberally from the provisions of the Provincial Order to the extent necessary to promote a better insight into the regulatory framework against which the validity or otherwise of the legal point now sought to be argued by the defendants on appeal has to be considered. The portions of the Provincial Order which are relevant for present purposes read thus :

“5. DUTIES OF THE COMMITTEE

5.1 The committee shall convene on request of the station commissioner or unit commander within five (5) normal working days of receiving an application from a member.

5.2 The committee shall discuss and evaluate the application by the member taking into account the criteria as per paragraph 7 of this order.

5.3 The committee shall then vote on the granting of permission by show of hands.

5.4 The result of the deliberations and vote by the committee shall be made known to the applicant in writing within two(2) normal working days.

5.5 The committee may attach any conditions it deems proper to the granting of permission to possess a state owned firearm by the applicant when the latter is not on duty.

5.6 The committee may out of own accord and at any time re-assess the previous granting of permission after proper notice to the member concerned.

5.7 In the event of an application being turned down or reversed, reasons for turning down of the application or the reversing of the decision must be stated in writing on the notification to the applicant or subsequent notification of reversal of decision.

5.8 A copy of the application as well as the decision by the committee must be placed in the personal file of the member on station or unit level.

5.9 An alphabetical register must be maintained by the committee in which every application, approval, decision, withdrawal as well as conditions applying to the permission must be noted.

5.10 In the event of a member serving on the committee applying for permission to be in possession of a state owned firearm when not on duty, such a member may not vote or be present during voting on his application by the other members of the committee. In the event of a tied vote, the vote of the station commissioner or unit commander will be the deciding vote.

5.11 The committee has at its own discretion the right to call in any applicant and to put questions to such applicant in order to enable the committee to come to a decision.

6. APPEAL

6.1 In the event of an application being turned down or reversed, the member concerned may appeal the decision of the committee by submitting a copy of the original application, the reasons for turning down or reversal of the application as given by the committee, as well as his written motivation against the decision of the committee to the relevant area commissioner within seven (7) days of receiving notification by the committee.

6.2 The area commissioner will re-assess the original application in the light of the reasons for turning down the application or the reversing of the previous decision as given by the committee and the motivation for appeal.

6.3 The area commissioner may confirm or reverse the decision by the committee.

6.4 The area commissioner may attach any conditions he deems proper to the granting of permission on appeal.

6.5 The decision of the area commissioner is final.

7. CRITERIA TO BE CONSIDERED BY THE COMMITTEE OR THE AREA COMMISSIONER IN THE EVENT OF AN APPEAL TO THE LATTER

7.1 The following criteria should be taken into account in evaluating the application by a member to be in possession of a state owned firearm when such a member is not on duty.

These criteria must be interpreted as flexible and the committee or the area commissioner dealing with an appeal must take practical realities affecting the member or the station or unit concerned into account. No criterion must be seen in isolation-every applicable factor must be weighed against all the others.

7.1.1 The level of animosity shown against members of the service in the area where the applicant resides.

7.1.2 The incidence of attacks against members of the Service in the area.

7.1.3 The social make-up of the area where the member lives in.

7.1.4 The existence of any current or recent threats against the member concerned or his family.

7.1.5 The nature of duties the unit to which the member belongs, perform. (After hour handling of/meeting with informers, regular standby duties, dealing with known dangerous criminals, regular call outs after hours, etc.)

7.1.6 The involvement of the member in any high profile case against criminals who might reasonably be expected to retaliate against the member.

7.1.7 The type of firearm the member is asking permission to be in possession of. (Differentiation between handguns and rifles, shotguns or submachine pistols is important since they serve different purposes or have different fields of potential practical application).

7.1.8 Does the applicant have permission to be in possession of any other state owned firearms when not on duty and does the member actually make use of this authority? (Seen in the light of reasons given for the previous application).

7.1.9 The area where the member resides or must regularly travel through. (High density urban or remote rural for example).

10. The service record of the applicant. (Recent convictions on account of gross misconduct or criminal charges involving an element of violence should weigh heavy on the minds of the committee members in making their decision).

7.1.11 Does the member possess a safe or does the member have access to a safe where he can safely keep the weapon when it is not on the person of the member?

7.1.12 Does the member enjoy a stable family or personal life? (Knowledge of family or personal strife must be taken into account).

7.1.13 Is the member prepared to work after hours when called upon by his commanders?

7.1.14 Are there any known incidents where the member placed himself/herself on duty to serve the community when the latter requested his assistance or where he became aware of a crime committed in his close proximity?

7.1.15 Does the member have a history of alcohol or substance abuse for which he or she is receiving treatment (help) or for which treatment (help) is

contemplated?

7.1.16 Does the member have a history of depression or

anxiety?

7.1.17 Does the member have a private firearm. (Seen in context of the stated reason for the application – self-defence or after hour work).

8.

8.1 In the event of a member to whom permission to be in possession of a state owned firearm has been given making himself or herself guilty of serious misconduct, the

permission can be withdrawn with immediate effect by the station commissioner or unit commander. The relevant area commissioner or the Provincial Commissioner can act likewise in the event of a member attached to the Area Commissioners office or Provincial Commissioners office makes himself or herself guilty of serious misconduct.

8.2 Where a station or unit commander takes action as contemplated in paragraph 8.1, the member whose permission has been withdrawn may make a written representation to the committee regarding the withdrawal. The committee may however not reverse the decision of the station or unit commander if an investigation, departmental hearing or criminal trial regarding the conduct of the member is pending. If such a member is cleared by the investigation, hearing or court the committee can re-assess the permission of the member to be in possession of a state owned firearm when not on duty.” (Emphasis added)

[9] After the issues that I was required to adjudicate upon at the trial had been clearly defined in the first pre-trial minute filed of record by the parties pursuant to a pre-trial conference convened on 10 October 2005 to which reference is made in para [11] of my judgment dealing with the merits both parties presented evidence before me in their respective quests to prove each party’s own case and disprove the other party’s case.

[10] At the conclusion of the adduction of evidence at the trial and before argument the defendants conceded liability in respect of all the claims of the plaintiff both in her personal and representative capacities save for the claim in respect of the plaintiff’s claim for loss of income and/or earning capacity.

[11] For the sake of completeness it bears mentioning that in conceding the plaintiff’s claims bar the only one to which reference has already been made in the preceding paragraph of this judgment the defendants expressly conceded that: (and I quote verbatim from para 12 of the written heads of argument filed on behalf of the defendants on 3 October 2007.)

“[I]n these circumstances, we highlight that there is, with respect, no need to enquire into whether the plaintiff has established negligence in the manner specifically pleaded in paragraphs 7.7 and 7.9 of her amended particulars of claim. Nor is there any need for this Honourable Court to be addressed on “wrongfulness”, “Demeanour of Witnesses,” etc” [emphasis added]

[12] It is clearly apparent from what is said in the preceding paragraph that the defendants expressly conceded that the first defendant’s servants were negligent and that their negligence was wrongful in the delictual sense in that they owed the plaintiff a legal duty to act and thus prevent the damages that the plaintiff suffered as a consequence of their culpable omission.

[13] Having had the benefit of listening to counsel on both sides on the only remaining issue in dispute between them and after some anxious consideration of the matter I found in favour of the plaintiff and consequently gave judgment accordingly on 24 April 2008. The costs followed the event.

[14] To my utter amazement, if I may say so, it came to my attention on 17 May 2008 that the defendants had filed an application for leave to appeal against part of my judgment in terms of which the defendants were held liable to compensate the plaintiff both in her personal and representative capacities for such damages as the plaintiff may prove to have suffered in respect of the following :

1. loss of support (both in her personal and representative capacities);

2. loss of earning capacity.

[15] The element of surprise on my part arises from the fact that the portion of my judgment belatedly sought to be appealed against by the defendants was in truth and in fact essentially a judgment taken by “consent” between the parties following the express concession made by the defendants to which reference has been made in paragraph [10] of this judgment.

[16] Once again I consider that it would be convenient and also conduce to a proper understanding of the issue now raised in the defendants’ application for leave to appeal if I were to set out in extensio the grounds of the defendants’ proposed appeal. The proposed grounds of appeal read thus :

“1. The Court erred in finding that the first defendant was liable to the plaintiff for loss of support emanating from the death of the plaintiff’s husband, Phumzile Madyibi (the deceased), which came about as a result of the deceased committing suicide.

2. Having recourse to the fact that the deceased had committed suicide, the allegations of fact in the plaintiff’s particulars of claim and the evidence adduced in support of the claim for loss of support are not susceptible in law of sustaining a finding that the first defendant was under a legal duty to avoid loss of support being caused to the plaintiff in her personal and representative capacities.

3. Notwithstanding the concession made on the basis of which the court pronounced that negligence on the part of members of the South African Police Service was the proximate or direct cause of the plaintiff suffering damages, for loss of support as well, no evidence could have been led, and none was, to establish wrongfulness, as no cause of action therefor had, in any event, been disclosed in the summons.

4. The Court erred in not finding, even mero motu, that considerations of public or legal policy do not require the extension of delictual liability to a situation where the breadwinner has neither been killed nor injured in a wrongful and culpable manner, but had by his own act of committing suicide rendered himself unable to support his dependants.

5. The Court should accordingly have mero motu dismissed, with costs, the claim for loss of support by the plaintiff in her personal and representative capacities, and it erred in not doing so.

6. There are reasonable prospects of another Court arriving at a different conclusion than that reached by this Honourable Court and the matter is of great importance to both parties.”

[17] With the aforegoing prelude I now turn to deal with the defendants’ application for leave to appeal.

[18] The requirements for leave to appeal have, in a long line of cases, been held to be existence of a reasonable prospect of success on appeal. See : R v Baloi 1949 (1) SA 523 (A) at 524; R v Nxumalo 1939 AD 580 at 582; R v Ngubane & Others 1945 AD 185 at 187; Capital Building Society v De Jager & Others; De Jager and Another v Capital Building Society 1964 (1) SA 247 (A); Afrikaanse Pers Bpk v Olivier 1949 (2) SA 890 (O) at 892 – 893; S v Ackerman en ‘n Ander 1973 (1) SA 765 (A) and S v Sikosana 1980 (4) SA 559 (A) at 562.

[19] Although some of the cases cited in the preceding paragraph were criminal cases it has been held that the test is the same and the same need for the test to be applied properly applies also in civil cases. See : Botes & Another v Nedbank Limited 1983 (3) SA 27 (AD) at 28 C.

[20] In giving consideration to the issues at hand I am enjoined by judicial authority to take due cognisance of the test which is of application in matters of this nature. Judicial authority requires of a Judge considering an application for leave to appeal to reflect dispassionately upon the decision sought to be appealed against and decide whether or not there is a reasonable prospect that the Appeal Court may come to a different conclusion. This necessarily requires of me to disabuse my mind of the fact that I was of the view when I delivered my judgment that it was supportable both on the facts of the case and the law applicable thereto.

[21] Although Mr Mbenenge SC, who together with Mr Zilwa appeared on behalf of the defendants at the hearing of the application for leave to appeal, was on his feet for almost an hour arguing the application I shall attempt to summarise the upshot of his argument in the hope that in so doing I shall not do injustice to his submissions.

[22] As I understood Mr Mbenenge’s argument leave to appeal against my judgment is sought on one broad principal basis which I have attempted to summarise hereunder in the sincere hope that in so doing I shall not fail (and thus do an injustice to the thrust of the defendants’ argument) to capture the gist thereof :

(i) in the first place it was argued that the concession made by counsel for the defendants that the plaintiff had succeeded on the evidence presented at the trial to establish that the defendants’ conduct complained of was not only negligent but also wrongful in the delictual sense was erroneous. Such erroneous concession, so went the argument, did not relieve this Court from its duty to consider whether wrongfulness had in fact been established.

(ii) that because the deceased had rendered himself unable to render support to his dependants through his own voluntary act (i.e. by committing suicide) his dependants were without a legal remedy despite the omission by first defendant’s servant(s) to revoke the permission previously granted to the deceased to keep a state firearm in his possession because such omission was not wrongful in the delictual sense.

(iii) that the plaintiff’s claim for loss of support in the circumstances obtaining in this case was not cognisable in law because both public and legal policy considerations militate against the extension of delictual liability under such circumstances.

[23] It will have been observed from what is stated in para [22] of this judgment that the defendants contend that even accepting the fact that the first defendant’s servants had neglected and/or failed to take decisive action to withdraw the permission previously granted to the deceased to possess a state firearm on account of the fact that the deceased had to the knowledge of the first defendant’s servants manifested both a violent disposition and suicidal tendencies as alleged in the plaintiff’s particulars of claim the conduct of the first defendant’s servants was not wrongful in the delictual sense and consequently the defendants did not owe the plaintiff and her minor children any legal duty to act.

[24] In giving consideration to this issue I am enjoined by judicial authority to guard against the temptation to conflate the elements of wrongfulness and negligence. Prof J. Neethling has written an incisive and well thought out article on this subject – titled : “The conflation of wrongfulness and negligence : Is it always such a bad thing for the law of delict?” See (2006) 123 SALJ 204.

See also : Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA) at para [11]”

[25] There is a long line of cases that have served before our courts in the past that have wrestled with the element of wrongfulness in delict which held that wrongfulness is a separate and distinct requirement from negligence and causation which requires to be established before delictual liability may ensue. Notably amongst those cases is the judgment in Telematrix (Pty) Ltd v Advertising Standards Authority SA 2006 (1) SA 461 (SCA) in a passage appearing at 468 at which the following is stated :

“[12] The first principle of the law of delict, which is so easily forgotten and hardly appears in any local text on the subject, is, as the Dutch author Asser points out, that everyone has to bear the loss he or she suffers. The Afrikaans aphorism is that “skade rus waar dit val”. Aquilian liability provides for an exception to the rule and, in order to be liable for the loss of someone else, the act or omission of the defendant must have been wrongful and negligent and have caused the loss. But the fact that an act is negligent does not make it wrongful although foreseeability of damage may be a factor in establishing whether or not a particular act was wrongful. To elevate negligence to the determining factor confuses wrongfulness with negligence and leads to the absorption of the English law tort of negligence into our law, thereby distorting it.

[13] When dealing with the negligent causation of pure economic loss it is well to remember that the act or omission is not prima facie wrongful (“unlawful” is the synonym and is less of a euphemism) and that more is needed. Policy considerations must dictate that the plaintiff should be entitled to be recompensed by the defendant for the loss suffered (and not the converse as Goldstone J once implied unless it is a case of prima facie wrongfulness, such as where the loss was due to damage caused to the person or property of the plaintiff.) In other words, conduct is wrongful if public policy considerations demand that in the circumstances the plaintiff has to be compensated for the loss caused by the negligent act or omission of the defendant.”

[26] In the Trustees, Two Oceans Aquarium Trust case, supra at 144 B-C it was held that negligent conduct that causes physical damage to the person or property of another is prima facie wrongful. It was further held that the element of wrongfulness becomes less straightforward in relation to liability for negligent omissions and for pure economic loss caused negligently. In such circumstances the issue of wrongfulness would, to a large degree, depend on the existence of a legal duty not to act negligently. The question of whether or not the law would impose a legal duty would be a matter to be determined in accordance with criteria of public or legal policy in keeping with constitutional norms. See in this regard : Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A); Indac Electronics (Pty) Ltd v Volkskas Bank Ltd [1991] ZASCA 190; 1992 (1) SA 783 (A); and compare : Minister van Polisie v Ewels 1975 (3) SA 590 (A); Hawker v Life Officers Association of South Africa 1987 (3) SA 777 (CPD). In these last-mentioned two cases it was held that the convictions of society should be balanced with the boni mores of the community to determine whether the conduct complained of should, delictually speaking, be regarded as wrongful.

[27] Where there is no legal precedent (which is the position as far as I could ascertain) policy decisions and value judgments will help shape and/or refashion the common law regard always being had to the perceptions of the people at any given time. See in this regard the lucid and incisive article by M.M. Corbett titled : “ Aspects of the Role of Policy in the Evolution of the Common Law” in (1987) SALJ 104. With the advent of our constitutional democracy this process of evaluation of the moral convictions of the community will be informed by the values underpinning our Constitution which, inter alia, espouses principles of accountability and respect for human rights. See in this regard : Olitzki Property Holdings v

State Tender Board 2001 (3) SA 1247 (SCA) at 1257 D-F; Minister of Safety and Security v van Duivenboden 2002 (6) SA 431 (SCA).

[28] The test for determining wrongfulness was articulated in these terms in Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as Amicus Curiae) 2003(1) SA 389 (SCA) in a passage appearing at 395 -396:

“Our common law employs the element of wrongfulness (in addition to the requirements of fault, causation and harm) to determine liability for delictual damages caused by an omission. The appropriate test for determining wrongfulness has been settled in a long line of decisions of this Court. An omission is wrongful if the defendant is under a legal duty to act positively to prevent the harm suffered by the plaintiff. The test is one of reasonableness. A defendant is under a legal duty to act positively to prevent harm to the plaintiff if it is reasonable to expect of the defendant to have taken positive measures to prevent the harm. The Court determines whether it is reasonable to have expected of the defendant to have done so by making a value judgment based, inter alia, upon its perception of the legal convictions of the community and on considerations of policy. The question whether a legal duty exists in a particular case is thus a conclusion of law depending on a consideration of all the circumstances of the case on the interplay of the many factors which have to be considered.” (Emphasis added)

But as it was emphasised in Minister of Safety and Security v Van Duivenboden, supra, at 446 F that when determining whether the law should recognise the existence of a legal duty in any particular circumstances, ‘what is called for is not an intuitive reaction to a collection of arbitrary factors but rather a balancing against one another of identifiable norms.’

[29] The Constitutional Court from which this Court should, in a manner of speaking, take its tune, given the hierachical structure of our courts, has decreed that the element of wrongfulness in the delictual sense must be accorded a wider scope than was traditionally the position before the advent of the present constitutional order. See in this regard : Carmichele v Minister of Safety and Security [2001] ZACC 22; 2001 (4) SA 938 (CC) at 962 – 963.

[30] Mr Mbenenge sought to persuade me with reference to the case of Brooks v Minister of Safety and Security [2007] ZAWCHC 51; 2008 (2) SA 397 (C) upon which he pinned his faith that notwithstanding the concession made by the defendants in relation to the element of wrongfulness I should have found that the plaintiff had failed to establish wrongfulness both on the pleadings and the evidence presented to this Court. He stressed with reference to paras [43], [44] and [45] of the Brooks case, supra, that the issue that had arisen for determination in this case was on all fours with the Brooks case, supra which, he submitted, accurately reflects the state of the law on this topic. It was further submitted that the reasoning in Brooks case, supra, was not only of strong persuasive force but also compelling and that being so, continued the argument, I should adopt it for present purposes.

[31] I have given anxious consideration to these submissions but regret that I find myself, with respect, unable to follow the Brooks’ case. My disinclination to do so is in essence informed by two crucial considerations. First, it is my judgment that the facts of this case as is apparent from the plaintiff’s particulars of claim, which I have taken the liberty to quote extensively from in this judgment to demonstrate this point, are materially distinguishable from the facts of the Brooks’ case, supra. In the second place I do not think that imposing a legal duty to act on the facts of this case and thus as a matter of public and legal policy extend delictual liability would place too heavy a burden on the police by requiring them to act and prevent the sort of harm that has been suffered by the plaintiff in casu. It is consequently my respectful view that the Brooks case cannot be taken as authority for anything further than its own peculiar facts.

[32] It does not require Solomonic wisdom, in my view, to appreciate that all reasonable minded persons in our constitutional democracy founded on principles and values of accountability and respect for human rights would baulk at the contention that a flagrant disregard by the servants of the first defendant of their own regulations (which is what the defendants’ contention boils down to) should not attract liability on the part of the first defendant and that persons who find themselves in the situation in which the plaintiff in casu finds herself should be without a legal remedy. This is particular so if regard is had to the fact that even on a cursory reading of the provisions of the Provincial Order the inference is irresistible that the main objective of the criteria relevant in the determination of the question of whether a member of SAPS is suitably qualified to possess a state firearm was to guard against the very harm that befell the plaintiff when the deceased attempted to murder her and thereafter, believing that he had accomplished his mission, committed suicide. This is even particularly so if regard is had not only to the averments contained in the plaintiff’s particulars of claim read together with the Provincial Order but also, and even more telling, the evidence adduced at the trial, the correctness of which was unreservedly accepted by defendants’ counsel during argument at the trial.

[33] It needs to be said that one is ineluctably driven to the conclusion that the first defendant’s servants could not have failed, on a conspectus of the evidence adduced at the trial, to appreciate that given both the deceased’s violent temperament and suicidal tendencies the gravity of the possible consequences of the deceased using the state firearm in his possession otherwise than for lawful purposes were too ghastly to contemplate. Compare in this regard : Cape Metropolitan Council v Graham 2001 (1) SA 1197 (SCA) at para [15]. As it was held in the Telematrix case, supra, forseeability of damage may be a factor in establishing whether or not a particular act was wrongful. On the peculiar facts of this case it is my judgment that given the deceased violent predisposition and the fact that this was at all material times a well known fact to the second defendant in particular and other members of SAPS in general at the Ngqeleni police station the possibility of what eventually occurred on 21 January 2006 (when the deceased shot and severely injured the plaintiff and thereafter committed suicide) must have loomed large in the minds of the first defendant’s servants who despite foreseeing the probable tragic consequences of their culpable omission nevertheless chose to remain supine and thereby reconciled themselves with what must have been recognised by them to be a distinct possibility.

[34] It is my judgment that it would evoke feelings of moral indignation in all reasonable persons if it were to be held that on the peculiar circumstances of this case the police should be exonerated from liability on the basis that their conduct in flagrantly flouting their own regulations, although admittedly grossly negligent, is nevertheless not wrongful in the delictual sense.

[35] For the sake of completeness it bears mentioning that in support of the ground relied upon in para [16] (3) above Mr Mbenenge heavily relied on the dictum of Ngcobo J in the decision of Matatiele Municipality v President of the Republic of South Africa 2006 (5) SA 47 (CC) in a passage appearing at para [47] in which the following is stated :

“[67]” Here, we are concerned with a legal concession. It is trite law that this Court is not bound by a legal concession if it considers the concession to be wrong in law …..[T]his Court firmly rejected the proposition that it is bound by an incorrect legal concession, holding that, “if that concession was wrong in law [it], would have no hesitation whatsoever in rejecting it’. Were it to be otherwise, this could lead to an intolerable situation where this court would be bound by a mistake of law on the part of a litigant. The result would be the certification of law or conduct as consistent with the constitution when the law or conduct, in fact, is inconsistent with the Constitution”.

Further reliance was placed on the decisions of Azapo and Others v President of the Republic of South Africa [1996] ZACC 16; 1996 (4) SA 671(CC) at 683 H – I and Truth and Reconciliation Commission v Du Preez & Another 1996 (3) SA 997 (CPD) at 1009 B-C.

[36] As the defendants had, during the course of the trial, conceded that the plaintiff had established that the first defendant’s servants were negligent and that their failure to guard against the harm flowing from their negligence was also wrongful in the delictual sense I deemed it unnecessary (being of the view that to embark on such an inquiry would not just be purely academic but also an exercise in futility given the concession consciously made by the defendants) to consider the question of whether wrongfulness had indeed been established.

[37] Given the fact that wrongfulness has now been pertinently put in issue in the defendants’ application for leave to appeal I consider it not only desirable but also a matter of necessity that I should deal with that aspect of the case in this judgment despite the forceful argument advanced by Mr Mbenenge to the effect that it was not legally competent for me to do so at this belated stage because, so went his argument, I am now functus officio. I shall state my reasons for rejecting Mr Mbenenge’s argument on this score as briefly as possible. They follow hereunder.

[38] The general rule, now firmly established in our law, is that once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter or supplement it. The underlying reason for this rule is that the court thereupon becomes functus officio. See in this regard : West Rand Estates Ltd v New Zealand Insurance Co. Ltd 1926 AD 173 at 176, 178, 186-7 and 192; Firestone S.A. (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A) at 306 F; First National Bank of S.A. Ltd v Jurgens & Others 1993 (1) SA 245 (W) at 246 J; and compare : Transvaal Canoe Union v Butgereit and Another 1990 (3) SA 398 (T).

[39] However, there are exceptions to this general rule which are set out and discussed in the Firestone case, supra at 306 H - 308 A. For the sake of brevity I do not deem it necessary to set them out in this judgment for I do not consider that they are applicable to the peculiar circumstances of this case. But I consider it necessary to make the point that in a situation as that which obtains in this case in which the question of wrongfulness was no longer in issue at the stage of argument it is too simplistic a view of the matter to contend that it is not open to me to bring my mind to bear on the element of wrongfulness. I can see no reason both in logic and in principle that militates against such an approach.

[40] I am fortified in this view by the general principle of our law that if a judicial officer delivers an ex-tempore judgment and then prepares a revised version of it which amends, supplements or explains the original judgment without affecting the substance of it, the revised judgment will be considered to be the judgment of the court. This general principle has received judicial recognition. See in this regard : S v Wells 1990 (1) SA 816 (A) at 819 G – 820 H. By parity of reasoning it therefore seems to me that if it is legally permissible to do so in such a situation then there is even a more compelling case for the proposition that as the issue of wrongfulness was not dealt with in my judgment of 24 April 2008 because it was

no longer a contentious issue between the parties at the end of the trial one would be hardput to contend that the court cannot deal with it now given the fact that it is now the very basis upon which the entire application for leave to appeal is rooted. Contrary to what counsel for the defendants urged upon me on this score, and this is even more significant, because this is an issue that triggered the application for leave to appeal I am justified to deal therewith in order to arrive at a decision on whether leave to appeal ought to be granted or refused.

[41] Apart from all else my further motivation for choosing to deal with the aspect of wrongfulness even at this belated stage given that it has now become a contentious issue (which it was not before the delivery of my judgment on 24 April 2008) is re-inforced by my appreciation of the critical importance of the requirement and desirability to furnish reasons for the conclusion that the Court reaches on any contentious issue argued before it more especially when it is sought to take the case on appeal. In the premises the importance of the duty that rests on the court of first instance to furnish its reasons for the benefit of the Appeal Court requires no

elaboration. See in this regard : Road Accident Fund v Murunga 2003 (5) SA 164 (SCA) at passages appearing in paras [31] to [32] which I consider apposite for present purposes where the following dicta are made :

‘[31] Before considering whether the amount awarded by the trial Court should be upset on appeal I return to an aspect touched on briefly earlier in this judgment, namely the lack of a reasoned basis for the determination of general damages. As a general rule a court which delivers a final judgment is obliged to give reasons for its decisions. In an article in (1998) 115 The South African Law Journal at 116 - 28 entitled “Writing a Judgment” the former Chief Justice, M M Corbett, pointed out that this general rule applies to both civil and criminal cases. In civil cases this is not a statutory rule but one of practice. The learned author referred to Botes and Another v Nedbank Ltd 1983 (3) SA 27 (A) where this Court held that in an opposed matter where the issues have been argued litigants are entitled to be informed of the reasons for the Judge's decision. It was pointed out that a reasoned judgment may well discourage an appeal by the loser and that the failure to supply reasons may have the opposite effect, that is, to encourage

an ill-founded appeal. The learned author stated the following at 117:

'In addition, should the matter be taken on appeal, the Court of

appeal has a similar interest in knowing why the Judge who heard the matter made the order which he did. But there are broader considerations as well. In my view, it is in the interests of the open and proper administration of justice that the courts state publicly the reasons for their decisions. Whether or not members of the general public are interested in a particular case - and quite often they are – a statement of reasons gives some assurance that the court gave due consideration to the matter and did not act arbitrarily. This is important in the maintenance of public confidence in the administration of justice.’

[32] Writing on the same subject in The Australian Law Journal (vol 67A 1993) at 494 – 502 the former Chief Justice of the High Court of

Australia, the Rt Hon Sir Harry Gibbs, considering the same rule of practice in common-law countries, stated the following at 494:

'The citizens of a modern democracy - at any rate in Australia - are not prepared to accept a decision simply because it has been pronounced, but rather are inclined to question and criticise any exercise of authority, judicial or otherwise. In such a society it is of particular importance that the parties to litigation – and the public - should be convinced that justice has been done, or at least that an honest, careful and conscientious effort has been made to do justice, in any particular case, and the delivery of reasons is part of the process which has that end in view.’

[33] This is, of course, not a case in which no attempt has been made to provide reasons for judgment. It is a case in which the

attempt has been inadequate. ………………………………………….

………………………………………………………………………….

……………………………………………………… .’ (My emphasis) It is thus implicit in the aforegoing dictum that a case in which no attempt whatsoever is made to furnish reasons would be as much deprecated (if not more) by the Appeal Court.

[42] It is therefore for these brief reasons that I have taken it as my judicial duty to furnish the reasons set out in paras [23] to [34] of this judgment to demonstrate that even if the defendants had pertinently contended that the plaintiff had not established the element of wrongfulness in the delictual sense for liability to ensue I would have found against them on the facts of this case for substantially the same reasons as are now set out in this judgment.

[43] However, sight must not be lost of the fact that my judgment on the merits is now, in a manner of speaking, all water under the bridge. I am now faced with an application for leave to appeal by the defendants that I need to deal with guided by the correct approach that I am enjoined by judicial authority to adopt in matters of that kind.

[44] It suffices to say that I have given anxious consideration to the contentions urged upon me by counsel for the defendants. Whilst I have to say that I am not entirely persuaded that on the peculiar facts of this case there is more than just a reasonable prospect of success in the proposed appeal as Mr Mbenenge forcefully argued I am nevertheless of the view that it would be presumptuous of me to think that my view of the matter is necessarily the correct one and that mine should be the first and last word spoken on this topic. It is thus my judgment that the application for leave to appeal by the defendants raises issues of great importance to the parties which require authoritative determination by the Appeal Court.

[45] I am therefore disposed to grant leave to appeal to the defendants. In this regard I consider that it would be appropriate, as Mr Mbenenge sought to persuade me, that leave to appeal should be to the Supreme Court of Appeal rather than to the Full Bench of this Division given that in my view this is an appropriate case most deserving of the attention of the Supreme Court of Appeal as it involves a controversial legal principle. See in this regard : S v Myaka 1993 (2) SACR 660 (A) at 661 i – 662 b and compare : Shoprite Checkers (Pty) Ltd v Bumpers Schwarmas CC and Others 2003 (5) SA 354 (SCA) in para [23] where the following is stated :

“The next matter requiring comment is this : the appellant sought leave to appeal in the Court a quo to the Full Bench and not to this Court. Nonetheless, leave to appeal to this Court was granted. If it was not an oversight on the part of the trial Judge, it is a decision to be deprecated. If it was, it is to be deprecated no less. Whatever a party or the parties may prefer, it remains the duty of the trial Judge to consider what Court is the more appropriate in the circumstances of the case. The issue was purely one of fact; no controversial legal principle was involved, and the sums of money involved are by today’s standards not so great as to justify the decision. The inappropriate granting of leave to appeal to this Court increases the litigants’ costs and results in cases involving greater difficulty and which are truly deserving of the attention of this Court having to compete for a place on the Court’s roll with a case which is not.”

[46] I hasten now to deal briefly with the plaintiff’s application for leave to execute the costs order granted in her favour in the judgment sought to be appealed against.

[47] The plaintiff’s application was brought on notice of motion on 1 August 2008 and the undermentioned relief is sought in the plaintiff’s notice of motion, namely :

“1. An order declaring that the plaintiff is entitled to present a Bill of Costs to the Registrar of the above-mentioned Honourable Court, after the plaintiff having compiled with the Rules of Court, for taxation thereof in respect of all party and party costs incurred by the plaintiff in the main action (Case No. 1034/2004) from the date of the commencement of the main action up to the granting of judgment on 24 April 2008;

2. An order directing the first defendant to pay the taxed Bill of Costs within thirty (30) days from the date of receipt thereof;

3. An order directing the first defendant to pay costs in the event of opposing the application;

4. Such further and/or alternative relief as the Honourable Court may deem appropriate.”

[48] At the commencement of the hearing of this application Mr Dukada SC who appeared on behalf of the plaintiff together with Mr Hinana readily conceded that the relief prayed for under paras 1 and 2 of the notice of motion was no longer persisted in. Mr Dukada acted wisely in making this concession as such relief is clearly ill-conceived. See : Beinash t/a Beinash & Co. v Reynolds 1999 (1) SA 1094 (WLD) at 1095 E – F.

[49] It will be recalled that at the outset of this judgment I alluded to the fact that although there is nothing said in the plaintiff’s founding papers that hers is an application under Rule 49(1) of the Uniform Rules there is, however, no doubt from a reading of the plaintiff’s founding papers that in truth and in fact hers was such an application. Given the fact that courts of law are enjoined by judicial authority to eschew formalism but rather to put substance above form I shall treat the plaintiff’s application accordingly.

[50] The foundation for this application may compendiously be stated to amount to this :

1. That plaintiff is presently unemployed and thus unable to pay legal fees required of her.

2. That her legal team made up of senior and junior counsel and instructing attorney have been acting essentially on a contingency basis.

3. The trial took up several days and her legal Bill of costs presently stands at over R3 million.

4. Her legal team has indicated that if they are not paid for services rendered todate they might seriously consider withdrawing.

5. That if her legal team were to withdraw at this stage she would certainly be at disadvantage given that the defendants are also represented by two counsel (one of whom is senior counsel) and in that event she is likely to suffer not only undue hardship but also prejudice which might well compel her to give up on the litigation that she has embarked upon to obtain redress.

6. That the defendants will not suffer any prejudice if she is allowed to recover the costs of suit awarded to her todate even if they were to succeed on appeal because quantum in respect of the claims that are no longer in dispute has yet to be determined.

7. In the premises she contends that even if the defendants were to be successful on appeal they would be able to recoup the costs paid to her whilst the appeal is still pending from whatever damages she may prove against them.

[51] The defendants have opposed the plaintiff’s application on the principal basis that they would suffer prejudice if plaintiff were paid her costs of suit before the outcome of the appeal is known for if the appeal were to succeed they would be at a disadvantage. They contend that it is cold comfort to them to expect them to recover the moneys that will have been paid out to the plaintiff in the meantime because if the appeal succeeds the Appeal Court will of necessity reverse the costs order made in favour of the plaintiff by the trial Court. The foundation for this contention is that the principle of substantial success that the plaintiff pins her faith on has no application on the peculiar circumstances of this case.

[52] It is timely at this stage to say a word or two about the legal principles that are of application in matters of this nature. First, the point needs to be made that this Court enjoys a wide discretion to grant or refuse this type of application which discretion has to be exercised judicially with due regard to what is just and equitable in the prevailing circumstances. See in this regard : South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (AD) at 545 A-G; Tuckers Land and Development Corporation (Pty) Ltd v Soja (Pty) Ltd 1980 (1) SA 691 (WLD) at 698 G-H; Airy and Another v Cross-Border Road Transport Agency and Others 2001 (1) SA 373 (TPD) at 741 I-J; Minister of Health and Others v Treatment Action Campaign and Others (No 1) 2002(5) SA 703 (CC) at 709 G-H to 710E; N and Others v Government of the Republic of South Africa and Others 2006 (6) SA 568 (D&CLD) at 571 I – 572 B.

[53] In its determination of a matter such as the one now under consideration in casu the Court will ordinarily have regard, inter alia, to the following factors :

1. The potentiality of irreparable harm or prejudice to the appellant should leave to execute be granted.

2. The potentiality of irreparable harm or prejudice to the

respondent on appeal if leave were to be refused.

3. The prospects of success on appeal, including more particularly the question whether the appeal is frivolous or vexatious or has been noted not with the bona fide intention of seeking to reverse the judgment but for some indirect purpose, for example to gain time or harass the other party.

(iv) Where there is the potentiality of irreparable harm or prejudice to both appellant and respondent, the balance of hardship or convenience, in other words where the equities lie as between the parties . See in this regard : South Cape Corp (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A); Cape Law Society v Solomon and Jackson 1978 (3) SA 452 (E); Nasopie (Edms) Bpk v Minister van Justisie 1979 (4) SA 438 (NC); Tuckers Land and Development Corp (Pty) Ltd v Soja (Pty) Ltd 1980 1 SA 691 (W); Airey v Cross-Border Road Transport Agency supra; Minister of Health v Treatment Action Campaign (No 1) [2002] ZACC 16; 2002 (5) SA 703 (CC) para [10]; N v Government of RSA (No 2) 2006 (6) SA 568 (D).

[54] In so far as it concerns the factor mentioned in para [53] (iv) above it is required of the Court to weigh up the degree of potential irreparable harm and/or prejudice and decide in whose favour the scales of justice are tipped. If they favour the plaintiff the discretion must be exercised in plaintiff’s favour but not so if they favour the defendants. See in this regard : Roberts v Chairman, Local Road Transportation Board, Cape Town (2) 1979 (4) SA 604 (CPD) at 606 G-H and 608 E-F; Burlington Hosiery Mills SA Ltd v Arwa (Pty) Ltd 1977 (4) SA 150 (WLD) at 153 C.

[55] I have given anxious consideration to the arguments advanced for and against the grant of the relief sought by the plaintiff in her quest to enforce the costs order made in her favour in the main action. Taking into account the factors mentioned in para [53] hereof I am persuaded that the balance of convenience overwhelmingly favours the plaintiff more than it favours the defendants. In the premises it is my judgment that it would be just and equitable, regard being had to all the circumstances obtaining in this matter, that I should come to the aid of the plaintiff. I am satisfied that if I do not come to the assistance of the plaintiff a miscarriage of justice might otherwise result. It would indeed be an affront to my sense of justice to deny the plaintiff relief given the fact that she has been subjected to a protracted and lengthy trial to establish the issue of liability in her action against the defendants.

[56] It is therefore my considered view that the argument urged upon this Court by Mr Mbenenge to the effect that given the fact that the prospects of success in the proposed appeal are extremely good the defendants are likely to suffer irreparable harm if the plaintiff’s application is granted cannot be upheld as it is my view that the equities of the case demonstrably lie in favour of the plaintiff.

[57] I therefore have no hesitation on a full conspectus of the material facts placed before me in coming to the aid of the plaintiff despite the fact that the plaintiff has not tendered any security which would ordinarily be required of a litigant seeking execution under Rule 49 (11) of the Uniform Rules in respect of the amount representing the costs that she seeks to recover from the defendants even before the determination of the defendants’ appeal. I have, on considerations of fairness and equity, decided to exempt the plaintiff from the obligation to furnish security because I am of the view that even if the costs order I made in the action were to be reversed on appeal, whether partially or in its entirety the defendants would not suffer irreparable harm or prejudice as the issue of quantum of the plaintiff’s damages in respect of the undisputed claims has yet to be determined. Compare : Roberts’ case supra at 609 A-D.

[58] The defendants would thus not be without a remedy if that possibility were to eventuate for they would be able to recoup whatever amount that the plaintiff might be required to repay to them from her damages award. It seems to me, taking an objective view of the matter, that the order I am disposed to grant thereanent is eminently fair and equitable. I consider it necessary and not without significance to re-iterate the fact that an award of costs is at the discretion of the trial court and the Appeal Court will not lightly interfere with the proper exercise of such discretion unless it were shown that the trial court exercised its discretion wrongfully or injudiciously or committed a material misdirection. This is a trite principle that requires no supportive citation of authority.

[59] In so far as the costs of the Rule 49(11) application are concerned and given the fact that it was argued in a relatively short space of time I consider that it would accord with justice if, in the exercise of my discretion, I were to order that each party should bear its own costs as opposed to ordering that such costs should be costs in the cause in the appeal. Such an approach commends itself for adoption in the special circumstances of this case. I am driven to this conclusion primarily for two reasons. First : the substantial portion of the relief claimed by the plaintiff in her application was ill-conceived, a fact conceded by her counsel. In the second place some of the allegations made in the plaintiff’s founding affidavit were demonstrably inaccurate. I advisedly put it no higher than that. It seems to me therefore that these two crucial factors probably prompted the defendants to oppose the plaintiff’s application.

[60] Apropos the costs of the application for leave to appeal there are, in my view, no exceptional circumstances that would warrant a departure from the general rule that such costs should be made costs in the cause in the appeal.

[61] In the result the following order shall issue :

1. Leave is granted to the defendants to appeal to the Supreme Court of Appeal against that part of the judgment of this Court handed down on 24 April 2008 relating to the plaintiff’s claim for loss of support both in her personal and representative capacities.

2. Leave is granted to the plaintiff to execute the costs order granted in her favour in the judgment handed down on 24 April 2008 in the action;

3. The costs of the application for leave to appeal which shall include the costs attendant upon the employment of two counsel shall be costs in the cause in the appeal.

4. Each party shall pay its own costs of the plaintiff’s application under Rule 49(11) of the Uniform Rules.

______________________________

X. M. PETSE

JUDGE OF THE HIGH COURT

HEARD ON : 04 SEPTEMBER 2008

DELIVERED ON : 30 OCTOBER 2008

PLAINTIFF’S COUNSEL : ADVOCATE N.K. DUKADA SC

(with him ADVOCATE M.N. HINANA)

INSTRUCTED BY : MESSRS V.V. MSINDO & ASSOCIATES

DEFENDANT’S COUNSEL : ADVOCATE S.M. MBENENGE SC

(with him ADVOCATE P.H.S. ZILWA)

INSTRUCTED BY : THE STATE ATTORNEY, EAST LONDON

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