Knowledge (XXG)

Minister of Safety & Security v Hamilton

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A reasonable person in the position of the 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
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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
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Hamilton sustained a serious spinal injury, rendering him "permanently wheelchair-bound," 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,
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The court believed that, had not the police been negligent in this regard—that is, had they taken the "reasonable pre-caution" detailed above—they would have come to the view that McArdell ought not to receive a firearm licence. The dangers were obvious:
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investigating, recommending and ultimately granting McArdell's application for a firearm licence." They had incurred vicarious liability, in that their dereliction of duty, unwittingly but effectively, had enabled McArdell's assault.
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The SCA dismissed the Minister's appeal and upheld the decision of the High Court, 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
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Finally, the court determined, having regard to considerations of "reasonableness, fairness or legal policy," that Hamilton's loss was not too remote to permit a claim for damages.
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applied successfully for a gun licence. Ten months later, during a parking-lot altercation, she shot Hamilton in the back.
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the conduct of the police had constituted an omission, been wrongful and incurred fault in the form of
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there was clear factual causation between the negligence of the police and Hamilton's shooting.
25: 249: 134: 65: 40:(SCA) on 21 August 2003, with judgment handed down on 26 September. 69:, and all the essential elements of delict were present: 98:fitness to possess a (potentially lethal) firearm. 256:Supreme Court of Appeal of South Africa cases 108:in-flicted on a member of the general public. 8: 127:Minister of Safety and Security v Hamilton 21:Minister of Safety and Security v Hamilton 52:, one Erna Lochiel McArdell in September 63:The applicable delictual action was the 160: 7: 73:Hamilton had suffered physical harm; 14: 32:, but with implications also for 261:2003 in South African case law 133:216 (SCA). 2003 Case 457/2002 1: 266:South African delict case law 282: 36:. It was heard before the 24:is an important case in 16:South African legal case 176:Act 75 of 1969, s 3(1). 148:Arms and Ammunition Act 50:Arms and Ammunition Act 38:Supreme Court of Appeal 167:2004 (2) SA 216 (SCA). 110: 100: 105: 95: 28:, in particular the 26:South African law 273: 240: 237: 231: 228: 222: 219: 213: 210: 204: 201: 195: 192: 186: 183: 177: 174: 168: 165: 48:In terms of the 281: 280: 276: 275: 274: 272: 271: 270: 246: 245: 244: 243: 238: 234: 229: 225: 220: 216: 211: 207: 202: 198: 193: 189: 184: 180: 175: 171: 166: 162: 157: 144: 123: 118: 90: 46: 17: 12: 11: 5: 279: 277: 269: 268: 263: 258: 248: 247: 242: 241: 232: 223: 214: 205: 196: 187: 178: 169: 159: 158: 156: 153: 152: 151: 143: 140: 139: 138: 122: 119: 117: 114: 89: 86: 85: 84: 81: 74: 45: 42: 15: 13: 10: 9: 6: 4: 3: 2: 278: 267: 264: 262: 259: 257: 254: 253: 251: 236: 233: 227: 224: 218: 215: 209: 206: 200: 197: 191: 188: 182: 179: 173: 170: 164: 161: 154: 149: 146: 145: 141: 136: 132: 128: 125: 124: 120: 115: 113: 109: 104: 99: 94: 87: 82: 79: 75: 72: 71: 70: 68: 67: 61: 57: 55: 51: 43: 41: 39: 35: 31: 30:law of delict 27: 23: 22: 235: 226: 217: 208: 199: 190: 181: 172: 163: 126: 111: 106: 101: 96: 91: 77: 64: 62: 58: 47: 34:criminal law 20: 19: 18: 150:75 of 1969. 142:Legislation 66:lex Aquilia 250:Categories 116:References 129:2004 (2) 239:Para 46. 230:Para 39. 221:Para 40. 212:Para 32. 203:Para 47. 121:Case law 88:Judgment 194:Para 4. 185:Para 2. 135:SAFLII 155:Notes 80:; and 78:dolus 44:Facts 54:1993 252:: 131:SA 137:.

Index

South African law
law of delict
criminal law
Supreme Court of Appeal
Arms and Ammunition Act
1993
lex Aquilia
SA
SAFLII
Arms and Ammunition Act
Categories
Supreme Court of Appeal of South Africa cases
2003 in South African case law
South African delict case law

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