Court name
Supreme Court
Case name
Shaanika v Ministry of Safety and Security
Media neutral citation
[2009] NASC 11





IN THE SUPREME COURT OF NAMIBIA










CASE
NO.: SA 35/2008





REPORTABLE











IN
THE SUPREME COURT OF NAMIBIA








In
the matter between





FRANSINA
YOLENI SHAANIKA APPELLANT








And








THE
MINISTRY OF SAFETY AND SECURITY RESPONDENT








Coram:
Shivute,
CJ, Strydom, AJA
et
Mtambanengwe, AJA.





Heard
on: 22/06/2009





Delivered
on: 23/07/2009













APPEAL JUDGMENT













STRYDOM, AJA:




  1. I shall refer herein to
    the parties as they appeared in the Court
    a
    quo
    .
    As there was no appeal launched by the second plaintiff I will refer
    to the first plaintiff as the plaintiff.









  1. The plaintiff issued
    combined summons in the High Court of Namibia in her capacity as
    mother and natural guardian of her minor son, Benson Sylvanus
    Nepunda, in terms of which she claimed an amount of N$60 012.00
    being loss of support. The Particulars of Claim alleged that Sem
    Shahalohamba Nepunda (the deceased) was the father of the minor son
    and that he, whilst under the control and supervision of the
    Namibian police, committed suicide. It was further alleged that the
    Namibian police owed him a duty of care and that they negligently or
    deliberately made it possible for him, when so under their control
    and supervision, to obtain a pistol with which he shot and killed
    himself.









  1. As previously set out
    the second plaintiff, the mother of the deceased, likewise claimed
    loss of support as a result of the death of the deceased as
    aforesaid. This claim was dismissed by the Court
    a
    quo

    and no appeal lies in this regard.









  1. From the plea of the
    defendant it seems that at the time when the summons was issued the
    responsible Minister was the Minister of Home affairs. However at
    the time when the plea was filed the Namibian police had their own
    Minister namely the Minister of Safety and Security. Nothing turns
    on this change of Minister as the situation was thereafter correctly
    set out in an amended Particulars of Claim filed by the plaintiff in
    answer to an exception launched by the defendant concerning lack of
    certain allegations made in the original Particulars of Claim.









  1. In its plea the
    defendant admitted that the deceased was under its custody and
    control on the 29 January 2004 as he was being interrogated in
    connection with the killing of one Mathilda Agnes Immanuel.









  1. Although the defendant
    admitted that there was a general duty of care on the Namibian
    Police towards persons in their custody it was denied that in the
    particular circumstances of this case that the police were under a
    duty of care towards the deceased to keep him from inflicting harm
    upon himself. It was further pleaded that the suicide of the
    deceased was unforeseen and that the firearm with which the deceased
    had killed himself was in a closed wardrobe.









  1. The defendant further
    denied liability and pleaded that the proximate cause of the
    deceased’s death was his own deliberate act of suicide. It was
    however admitted that the police, at the time, acted as they did,
    within the course and scope of their duties as such.









  1. At the Rule 37
    conference the defendant admitted that the deceased was the father
    of the minor child, Benson Sylvanus Nepunda, and that he was under a
    legal duty to maintain the said child according to the common law
    and relevant legislation.









  1. At the start of the
    trial the parties requested the Court
    a
    quo
    to
    hear evidence only in regard to liability and to let the issue of
    quantum stand over. The Court acceded to this request and the
    following “Statement of Agreed Facts” formed the basis of the
    proceedings before that Court, namely:








"1. That
the trial will proceed only on the merits and that the question of
quantum
stands over for later determination







2. ADMISSIONS:







The
following facts have been admitted and will accordingly require no
evidence:







2.1 That
Benson Silvanus Nepunda is the minor son of Sem Nepunda (the
deceased)







2.2 That
first plaintiff is the mother and natural guardian of the said Benson
Silvanus Nepunda and sues in her representative capacity;







2.3 That
the deceased died on 29 January 2004 at Windhoek Central Police
Station whilst under the custody and control of the Namibian Police;







2.4…







2.5 That
the members of the Namibian police were acting in the course and
scope of their employment as police officers in the Namibian Police
at all relevant times;







2.6 That
proper notice of Plaintiffs’ claims has been given.”








  1. From questions asked by
    the Court it seems that it was not the intention that the “Statement
    of Agreed Facts” should replace admissions made in terms of the
    pleadings and the trial then proceeded on this basis.









  1. Apart from the plaintiff
    herself, whose evidence was merely formal and not contested, the
    plaintiff also called one Sylvanus Nepunda, a brother of the
    deceased, who testified that he was a legal advisor to the Namibian
    Police. He testified about the Police Operational Manual and stated
    that when the police took control of a suspect they had to search
    such person for any dangerous weapons in his or her possession and
    any such weapons had to be confiscated and kept under lock and key.
    The purpose is to keep the suspect from harming himself or herself
    or harming other persons. Non-compliance with these orders may
    result in an enquiry of misconduct in regard to the offender.



  2. The plaintiff closed her
    case after Mr Nepunda gave evidence and thereupon the defendant’s
    counsel applied for absolution from the instance. After
    consideration the Court
    a
    quo
    granted
    the application.









  1. As a result of the
    finding of the Court at that stage of the proceedings the plaintiff
    launched an appeal to this Court. This caused the defendant to
    abandon the order in his favour and the case subsequently continued
    in the High Court where the defendant presented evidence.









  1. The only witness called
    by the defendant was Detective Inspector Booysen. On 27 January
    2004 the witness received a report of a body which was found in
    Lister Street. The body was that of a female who was later
    identified as Matilda Agnes Immanuel. The body had two chest wounds
    similar to wounds caused by bullets. At the scene of the crime the
    police also found two 9 millimeter spent cartridges and a Nokia
    cellphone.









  1. Booysen took the
    cellphone to the firm MTC who was able to provide him with a
    printout of calls received by means of the phone. Armed with this
    information Booysen was able to trace two persons who had phoned the
    murdered woman on the 24
    th
    of January. These persons admitted that they were with the woman on
    the 24
    th
    January but both denied that they had killed her. Booysen
    nevertheless detained the two suspects.









  1. Further investigation
    however brought to light that the dead woman had a relationship with
    one Sem Nepunda and that he had on occasion threatened to kill her.
    Nepunda was brought in for interrogation but he also denied having
    killed the woman. On further questioning he admitted possessing a
    9 millimeter pistol. Booysen obtained the pistol from the uncle of
    the deceased, one Simon, and together with the spent cartridges
    found at the scene of the crime, as well as two live cartridges
    still in the pistol, Booysen went to the forensic laboratory where
    it was, on the same day, namely the 29
    th
    January, 2004, established that the two spent cartridges were fired
    by the pistol obtained from Nepunda.









  1. Back at his office
    Booysen put the pistol together with the forensic report in an
    unlocked wardrobe. The deceased was then further interrogated by
    the witness. He, i.e. the deceased, admitted, after being warned,
    that he did not during the period 24 to 27 January 2004 lend or give
    or hire out the said pistol to anybody else.









  1. Booysen then confronted
    the deceased with the result of the forensic report but the deceased
    still denied having killed the woman. Booysen then tried to contact
    his senior officer but could not get hold of him. He then ordered
    the deceased to wait outside the office in the corridor. There were
    nine or ten other suspects waiting there as well. Booysen left his
    office and whilst in the office of a sergeant Ilundwa he heard a
    shot fired. He immediately realised where the shot came from and
    when he entered his office he saw the deceased lying on the floor
    with a pistol in his hand. He was dead. He estimated the time that
    he was gone from his office as maybe two to three minutes.









  1. Asked why the deceased
    had shot himself the witness said that the deceased was cornered
    and that he may have realised that he would have to go to prison for
    a long time. The witness further stated that the deceased did not
    know beforehand that the pistol was in the unlocked wardrobe.









  1. During the trial,
    various admissions were made by counsel for the defendant. On the
    basis of these admissions the Court
    a
    quo

    found that the plaintiff had proved that the negligence of the
    police contributed to the death of the deceased.









  1. The plaintiff was not
    satisfied with the outcome, more particularly the apportionment made
    by the court in regard to the damages, and Notice of Appeal was
    given against that part of the judgment and order which related to
    the plaintiff. In turn the defendant filed a cross-appeal in which
    he attacked the finding of the Court that rejected the possibility
    of the deceased having to go to prison for a very long time and
    holding the respondent liable for 20% of the damages suffered as a
    result of the loss of support of the minor child of the deceased.









  1. Ms Conradie appeared on
    behalf of the plaintiff and Mr Marcus on behalf of the defendant.








The main findings
by the Court
a
quo




  1. These findings were the
    following:













  1. In
    regard to liability and with reference to the various admissions
    made by the respondent the Court concluded “(i)t is accepted that
    the defendant is liable towards the plaintiffs because the
    defendant’s employee negligently made it possible for the deceased
    to kill himself.”









  1. The
    Court found that the Apportionment of Damages Act, Act No. 34 of
    1956 applied and more particularly sec. 1(1)(a) thereof.









    (iii) In
    regard to the defendant’s argument that the estate of the deceased
    was a joint wrongdoer the Court declined to decide the issue
    because it found application of sec. 1(1)(a) of the Act in the
    circumstances. The Court expressed doubt whether it could deal
    with the issue of joint wrongdoers without the estate of the
    deceased being joined.









    (iv) Dealing
    with the argument that the deceased would spend a considerable
    time in prison, the Court found that such a defence would have
    been a complete answer to the claim of the plaintiff but it was
    neither pleaded nor was there sufficient evidence to substantiate
    it. The Court consequently rejected the respondent’s reliance
    on this issue.










    1. The action of
      dependants against a person who has wrongfully killed the
      breadwinner who was legally liable to support them is not based on
      the
      Lex
      Aquilia
      .
      In
      Jameson
      Minors v Central South African Railways

      1908 TS 575, Innes CJ said the following:









Our
law…gives to those dependent a direct claim enforceable in their
own names, against a wrongdoer. This is a right not derived from the
deceased man or his estate, but independently conferred upon members
of his family.” (p583-584)







Further,
on page 585, the learned Chief Justice stated:







(T)he
compensation claimable under it is due to third parties, who do not
derive their rights through his estate, but on whom they are
automatically conferred by the fact of his death. The action is one

sui generis
;
probably its anomalous character may be accounted for by reference
to its original source.”











Negligence





    1. With regard to the
      issue of negligence of the defendant’s employee the following
      admissions were placed on record during the trial. These
      admissions were conveniently summarised by the learned
      Judge-President in his judgment. They are:










  1. The defendant accepts
    that members of the Namibian police force are aware that persons in
    their custody may inflict injuries or death on themselves or others
    and that it is why the duty is there to lock away firearms and to
    safeguard persons in custody at all times. The police therefore owe
    a duty of care towards persons in their custody so that such persons
    do not cause harm to themselves.









    (ii) A reasonable person
    in the position of members of the Namibian police force would
    foresee the reasonable possibility that a firearm that is not
    properly secured may be used by a person in police custody to
    injure themselves (sic) and the police would therefore take
    reasonable steps to guard against such an occurrence.









    (iii) The duty of care
    by the police towards a person in custody not to harm themselves
    (sic) is important because of the public interest that a person
    suspected of the commission of a crime eventually stands trial for
    the offence he is suspected of committing.









    (iv) The defendant
    accepts a causal link between the failure to lock away the firearm
    and the suicide of the person in the police custody.









    (v) The defendant
    accepts that the police were negligent in failing to lock the door
    to the office in which was kept the firearm used by the deceased.









  1. I agree with the learned
    Judge-President that the admissions constitute negligence on the
    part of the employee of the defendant and that such negligence
    materially contributed to the death of the deceased which in turn
    gave rise to the claim by the dependants.









  1. The admissions amount
    thereto that a
    bonus
    paterfamilias
    would
    have foreseen the reasonable possibility that not locking the
    firearm away could cause harm and that it would therefore have
    guarded against such harm by taking adequate steps and that it
    failed to do so. (
    Kruger
    v Coetzee
    1966
    (2) SA 428 (AD).)









  1. In stating the above I
    am mindful that in more recent times South African Courts, dealing
    with the difficult question of causation, have divided the enquiry
    into two stages namely factual causation and legal causation. (See
    Minister
    of Police v Skosana

    1977 (1) SA 31(A);
    International
    Shipping Co (Pty) Ltd v Bentley

    1990 (1) SA 680 (A);

    Gibson v Berkowitz and Another

    1996 (4) SA 1029,
    Sea
    Harvest Corporation (Pty) and Another v Duncan Dock Cold Storage
    (Pty) Ltd and Another
    2000
    (1) SA 827 (SCA) and
    Road
    Accident Fund v Russell
    2001
    (2) SA34 (SCA).)



  2. I have no doubt that
    applying these two distinct enquiries the answer would be the same
    as set out above. In the present matter the defendant went so far
    as to admit a causal link between the failure to lock away the
    firearm and the suicide of the person in the police custody.
    Although it could have been formulated with greater clarity I have
    no doubt, taking into consideration the whole tenor of the
    admissions made, that it was intended to be a complete admission
    that the harm caused wrongfully by the employee of the defendant was
    causally linked to the damages suffered by the dependants. Mr
    Marcus, who appeared on behalf of the defendant, did not argue
    otherwise, nor did the defendant appeal against the finding of
    negligence by the Court
    a
    quo.
    Initially
    counsel argued that the admissions were made in relation to a duty
    of care towards the deceased but, relying on the case of
    Brooks
    v Minister of Safety and Security

    2008 (2) SA 397 (CPD), he submitted that the duty of care should be
    towards the dependants and that therefore the issue was still alive
    and arguable. Counsel abandoned this argument, correctly in my
    view, because the liability arose once there was proof that the
    defendant’s employee negligently contributed to the death of the
    deceased who was under a legal duty to maintain his minor child and
    would have continued to do so had he not been killed. (See
    Constantia
    Versekeringsmaatskappy Beperk v Victor NO
    1986
    (1) SA 601 (AA) at 611H and
    Jameson
    Minors v Central South African Railways, supra,
    583
    – 585).









  1. The learned
    Judge-President expressed some misgivings in regard to allowing a
    claim in the particular circumstances of this case but found that he
    was bound by the admissions made on behalf of the defendant. I
    share those misgivings. In the present instance there was no proof
    that the deceased was suicidal or was suffering from some or other
    mental impairment. The deliberate action by the deceased to kill
    himself may very well have been met by a plea of
    volenti
    non fit injuria

    or that the act had broken the chain of causation in which case his
    claim could have been met by a defence of
    novus
    actus interveniens.
    Because
    I am bound by the admissions made I need not decide whether these
    pleas would have succeeded.









  1. For the reasons set out
    above I agree with the learned Judge-President that liability on
    behalf of the defendant was accepted.








The Apportionment
of damages Act, Act No 34 of 1956




  1. Ms Conradie submitted
    that the provisions of the Act, and more particularly sec. 1(1)(a)
    of the Act, do not apply where the claim is one on behalf of a
    dependant where the breadwinner’s death was wrongfully contributed
    to by the defendant’s employee.









  1. Section 1(1)(a) of the
    Act provides as follows:








Where
any person suffers damage which is caused partly by
his
own fault

and partly by the fault of any other person, a claim in respect of
that damage shall not be defeated by reason of the fault of the
claimant but the damages recoverable in respect thereof shall be
reduced by the court to such extent as the court may deem just and
equitable having regard to the degree in which the
claimant
was at fault in relation to the damage.”

(My emphasis)







  1. In the matter of Greater
    Johannesburg Transitional Metropolitan Council v Absa Bank Ltd T/A
    Volkskas Bank
    1997
    (2) SA 591 (WLD) the Court, Goldstein, J, set out the common law
    prior to the enactment of the Act. At p609 A-B the learned Judge
    stated:








It
would seem that our common law approached fault by both the plaintiff
and the defendant in two possible ways and that, for present
purposes, I need not decide which is correct. Our common law either
non-suited the plaintiff without further ado or it weighed up the
fault of each of the parties against that of the other. If it could
not be said that the defendant’s fault was greater than that of the
plaintiff, the plaintiff was non-suited.”







(See further Randbond
Investments (Pty) Ltd v FPS (Northern Region) (Pty) Ltd
1992
(2) SA 608 (WLD) at 620 B – D)








  1. From what is set out
    above it follows that, prior to the enactment of sec 1(1)(a) of the
    Act, a plaintiff who was shown also to be at fault was either
    non-suited without more or if it could not be said that the fault
    of the defendant was greater than that of the plaintiff he was
    likewise non-suited. Sec. 1(1)(a) brought about a change of the
    common law by allowing such a claim subject to the power of the
    Court to reduce it to what is just and equitable bearing in mind the
    degree to which such plaintiff was himself at fault in causing the
    damage.









  1. Where the person
    claiming is not the plaintiff, or someone representing him or her or
    where there is not a relationship amounting to a vicarious
    liability, sec. 1(1)(a) of the Act does not apply and contributory
    negligence cannot be a defence against the claim of a third person.
    In the present instance the plaintiff claimed as mother and natural
    guardian of the minor child in respect of which the deceased had a
    legal duty to support him. Neither the plaintiff nor the minor
    child was at fault and consequently sec. 1(1)(a) cannot apply to
    them. The person at fault was the deceased but he is not the
    claimant in these proceedings.









  1. In the matter of Grove
    v Ellis

    1977 (3) SA 388 (CPD) the wife of the plaintiff, to whom he was
    married in community of property, was involved in a motor-car
    accident. The plaintiff instituted a claim in the magistrate's
    court for the damages suffered. The court found that the wife
    contributed towards the damages suffered and, applying the Act,
    awarded the plaintiff 20% of his claim. On appeal the judgment was
    reversed. Vivier, J, (as he then was) stated the law as follows:








Sec.
1(1)(a) only allows an apportionment in those cases where the
‘claimant was at fault’, and in my view it cannot be said, in the
present case, that the claimant was in any way at fault.







Ordinarily
one spouse is not responsible for the delicts of the other, and the
negligence of the one would not be imputable to the other, save in
those cases based on vicarious responsibility. (p390 C-E)”







The learned Judge went on
to say that the proper remedy of the defendant was to claim a
contribution from the negligent wife as a joint wrongdoer. (p 390 H).
(See further
Van
Oudtshoorn v Northern Assurance Co. Ltd
1963
(2) SA 642 (AA) at 648 A – E).








  1. The concession made by
    Mr Marcus that the defendant could not claim a contribution from the
    plaintiff on the basis of the Act was therefore correctly made.



  2. I have therefore come to
    the conclusion that the Court
    a
    quo

    erred when it applied the Apportionment of Damages Act, Act No 34 of
    1956, and more particularly sec. 1(1)(a) thereof, to the present
    case. It also follows therefore that no apportionment of damages
    was possible.






Joint
wrongdoers




  1. In the Court a
    quo

    counsel for the defendant argued that the estate of the deceased was
    a joint wrongdoer and the defendant claimed an apportionment on the
    basis thereof. Although this argument was also foreshadowed in
    counsel’s Heads of Argument, Mr Marcus conceded that he could not
    support such a claim in the present proceedings.









  1. Again I am satisfied
    that this concession was correctly made. Sec. 2 of the Act deals
    with joint and concurrent wrongdoers. Sec. (1B) provides that the
    estate of a deceased person shall, in the circumstances mentioned in
    the section, be regarded as a joint wrongdoer. (See however the
    proviso set out in sub sec (6) (a).) It seems to me that it was
    therefore open to the defendant to join the estate of the deceased
    as a joint wrongdoer.









  1. In terms of subsec (2)
    the plaintiff or any joint wrongdoer who is sued in the proceedings
    may, before the close of pleadings, give notice of the action to any
    other joint wrongdoer who is not sued, and that wrongdoer may then
    intervene as a defendant in those proceedings.









  1. Subsec (4)(a) provides
    that if a joint wrongdoer was not sued in the action instituted
    against another joint wrongdoer and no notice was given to him or
    her the plaintiff could not thereafter issue summons against such
    wrongdoer without leave of the Court where good cause must be shown
    why notice was not given as aforesaid. Likewise a joint wrongdoer
    who did not give notice to another joint wrongdoer in terms of
    subsec (2)(a) or (b) cannot thereafter claim a contribution from
    such wrongdoer without leave of the Court on good cause shown why
    notice was not given in terms of subsec (2)(b).









  1. No joint wrongdoer was
    joined in the present proceedings nor was any notice given and
    consequently the defendant is liable
    in
    solidum

    and the plaintiff is entitled to claim her full damages from him.
    See in this regard
    Kleinhans
    v African Guarantee and Indemnity Co. Ltd
    1959
    (2) SA 619 (ECD) at 626E – 627C. The right of a claimant to claim
    the full amount of damages from any joint wrongdoer is recognised by
    subsec (6)(a) of sec 2. This subsec provides that where judgment is
    given against a joint wrongdoer for the full amount of the damages
    suffered by the claimant, and the full amount was paid by him or
    her, such wrongdoer may recover from any other wrongdoer a
    contribution having regard to the degree that the wrongdoer was at
    fault in causing the damages suffered by the claimant. See in this
    regard
    Lloyd-Gray
    Lithographers (Pty) Ltd v Nedcor Bank (Pty) Ltd t/a Nedbank

    1998 (2) SA 667 (WLD) at 673F – 674E. The case went on appeal and
    it was confirmed that joint wrongdoers were also liable
    in
    solidum

    at common law. See
    Nedcor
    Bank Ltd t/a Nedbank v Lloyd-Gray Lithographers (Pty) Ltd
    2000
    (4) SA 915 (SCA) at 923 A-C.









  1. Mr Marcus, relying on
    the case of
    Wright
    v Medi-Clinic Ltd

    2007 (4) 327 (CPD), submitted that the Court must nevertheless
    determine what damage was caused by each of the tortfeasors (in this
    instance the deceased and the defendant’s employee) and then
    apportion the degree to which each tortfeasor is liable to the
    claimant.









  1. In the Wright
    case the plaintiffs sued the obstetrician and the hospital for
    damages suffered as a result of negligence by both the doctor and
    the staff of the hospital causing the child born to suffer from
    extensive brain damage. The tortfeasors were properly before the
    Court. The Court in first instance made an apportionment which then
    led to an appeal. On appeal the respondent, the hospital, argued
    that it was impossible to determine to what extent each of them
    attributed to the brain damage caused to the child. The Court found
    that the damage caused was divisible and then continued to make an
    apportionment in terms of the provisions of the Act.









  1. In the Wright
    case all the relevant parties were before Court and the issue was,
    as between the two joint wrongdoers, whether the damage caused to
    the child was divisible. That is not the issue here and the
    plaintiff, having established the negligence by the defendant’s
    employee, is, in terms of the law, entitled to full payment of the
    damages suffered by the minor child.
    Wright’s
    case
    has therefore no application to the present instance.








Respondent’s
Cross-Appeal




  1. A father’s duty to
    maintain and support his minor child is dependent on what he is able
    to afford. (See Boberg:
    The
    Law of Persons and family;
    5th
    Ed. P249.) Every aspect which can increase the minor's prospects
    or may reduce them is therefore relevant in determining the damages
    suffered by a minor child on the death of his parent. One such
    issue which the Courts take into consideration is the fact that the
    death of a breadwinner may accelerate the inheritance prospects of a
    child. See generally
    Minister
    of Police, Transkei v Xatula

    1994 (2) SA 680 (Tk AD) at 684 C – D where it was stated:








Of
course in determining the
quantum
of damages, adjustments are made for contingencies which could have
increased or reduced his liability to fulfill his obligation to
support his family.”








  1. Mr Marcus, on the one
    hand, argued that the evidence of the State concerning the possible
    murder charge is so strong that it was inevitable that the deceased
    would have been convicted and sentenced to prison for a long time
    during which he would not have been able to maintain his minor
    child. Counsel therefore submitted that it was not shown that the
    deceased would have any income with which to maintain the child and
    that the claim should therefore have been dismissed.









  1. Ms Conradie on the other
    hand supported the finding of the Court
    a
    quo
    and
    pointed out that the investigation was, at the time the deceased
    killed himself, still at a very early stage, that it was based
    partly on hearsay evidence and that it was not certain that a
    conviction would follow.









  1. None of the parties have
    given thought to the possibility that the conviction and
    imprisonment of the deceased was, on the evidence, at least a
    possible factor which the Court should consider as a contingency as
    it might have influenced the ability of the deceased to maintain his
    minor child.









  1. It seems to me that a
    contingency is an event which is based on evidence which is not
    altogether conclusive and which may or may not happen sometime in
    the future and which would, if realised, have an influence, one way
    or the other, on the claim of the plaintiff.









  1. When the Court requested
    counsel to address us on this issue, Mr Marcus was still of the
    opinion that the deceased, had he not committed suicide, would have
    been sent to prison for a long time and because he would have had
    no source of income would not have been able to maintain his minor
    child. Counsel therefore submitted that in applying the contingency
    the claim of the plaintiff should be reduced by a 100%.









  1. Ms Conradie argued that
    the evidence was not sufficiently cogent to be elevated into a
    contingency and Counsel submitted because of the uncertain nature of
    the evidence the Court should not see it as a factor which would
    reduce the claim of the plaintiff. However, she stated that if the
    Court should come to the conclusion that the possible imprisonment
    of the deceased, had he not committed suicide, was a factor to be
    considered, the Court should not reduce the claim of the plaintiff
    by more than 50%.









  1. In my opinion counsel
    either over- or under-evaluated the evidence which gave rise to the
    contingency. If Mr Marcus is correct, namely that the deceased
    would have been convicted and would have gone to prison, then one is
    not dealing with a contingency but with a certainty which would have
    affected the source of income of the deceased. Ms Conradie on the
    other hand argued that the Court had to ignore the evidence of
    Booysen as the possible conviction and sentence of the breadwinner
    was so remote that it could on the evidence not possibly have
    materialised.









  1. At this stage the Court
    need not find that the evidence was such that it would inevitably
    have resulted in a conviction and prison sentence. On the other
    hand it could also, in my opinion, not be said that such a
    possibility was so remote and so uncertain that it could completely
    be ignored.









  1. On the evidence given by
    Booysen it seems to me that the State would at least have been able
    to prove a relationship between the deceased and the murdered woman,
    that, on an occasion he, the deceased, threatened to kill her, that
    she died as a result of being shot by someone with a 9 mm pistol,
    that the deceased had such a firearm and that spent cartridges found
    on the scene was ballistically proved to be fired by this pistol.
    There is also the evidence that relevant to the possible date of the
    killing the deceased had stated that the pistol was all the time in
    his possession.









  1. In my opinion the
    evidence is such that the possibility of a conviction and
    incarceration of the deceased could not simply be ignored as if it
    could not have materialized. On the other hand at this stage the
    possible conviction of the deceased is not a certainty. Skillful
    cross-examination may reveal flaws in the ballistic evidence to such
    an extent that a Court may decline to accept it. I have therefore
    come to the conclusion that the Court must take into consideration
    the contingency that the deceased, had he not committed suicide, may
    have had to spend some unprofitable time in prison and that this
    should be reflected in the damages recoverable by the plaintiff.









  1. In the case of Minister
    of Police, Transkei v Xatula, supra,
    the
    Appellate Division of the then Transkei was called upon to decide
    whether income derived from an illegal source disentitled dependants
    to claim compensation. The Court, Goldin, JA, referred with
    approval to what was stated by the authors
    Kemp
    and Kemp
    ,
    The
    Quantum of Damages,
    4th
    ed part II paras 2506 – 2508, where they discussed this problem,
    namely:








Only
the third possibility remains – that the illegality of support
should be substantially disregarded. That is in our submission the
correct view. However, even on that basis, it does not follow that
the award would fully reflect the amount of the dependency enjoyed
prior to the deceased’s death. For as was pointed out in
Bagge’s

case the Court is entitled, in appropriate cases, to take into
account the uncertainty of a criminal calling and the possibility of
long and unprofitable spells in prison.” (p 685 D – F).








  1. Considering all the
    evidence I am of the view that it would be fair and reasonable to
    reduce the plaintiff’s claim by 50%, as was also suggested by Ms
    Conradie in the event that the Court found this to be a contingency.








Costs




  1. The issue of costs to be
    awarded where a claimant is represented by the Legal Assistance
    Centre is on appeal and due to be heard during the next session of
    this Court in the case of
    Minister
    of Basic Education, Sport and Culture v Uirab
    .
    Although the defendant is not claiming costs both plaintiff and the
    defendant, in regard to his cross-appeal, were to a certain extent
    successful. As the parties could not anticipate the orders of the
    Court and given the fact that the appeal in
    Minister
    of Basic Education, Sport & Culture v Uirab
    is
    of relevance to the order of costs to be made in the present case it
    seems to me that it would be fair that the Court let the issue of
    costs stand over pending the outcome of the appeal in the
    Minister
    of Basic Education

    case and to afford any of the parties the right, thereafter, to set
    the matter down and argue the issue of costs if so advised.









  1. In the result the
    following orders are made:








1. The appellant’s
appeal succeeds to the extent set out herein before.









      2. The order of the
      Court
      a
      quo
      is
      set aside and the following order is substituted therefor:









The defendant is
liable to compensate the first plaintiff to the extent of 50% of the
damages resulting from loss of support occasioned by the death of Sam
Nepunda on 29 January 2004 at the Windhoek Central police station.”







3. (a) The orders of
costs in the proceedings before the High Court and before this Court
to stand over pending the outcome of the appeal in the matter of
Minister
of Basic Education, Sport & Culture v Uirab.







(b) Any of the parties
may thereafter set the matter down for argument in regard to costs.










        4. The cross-appeal
        succeeds to the extent as set out herein before.

















________________________


STRYDOM,
AJA











I
agree.














________________________


SHIVUTE,
CJ

















I
agree.














________________________


MTAMBANENGWE,
AJA














COUNSEL
ON BEHALF OF THE APPELLANT: Ms L. Conradie





Instructed
by: Legal Assistance Centre





COUNSEL
ON BEHALF OF THE RESPONDENT: Mr N. Marcus





Instructed
by: Government Attorney