- February 9, 2023
- |Concise Law Reports (CLR), Delict
The plaintiff claimed damages allegedly resulting from an omission by members of the police service. It was alleged that a truck carrying goods belonging to the plaintiff overturned where after, in the presence of members of the police who were acting within the course and scope of their employment and who stood idle and watching, the public looted the consignment of the truck. It was alleged that the police have a legal duty to protect the properties of the plaintiff and their failure to protect such properties caused the public to loot the consignment of the truck. The plaintiff, as a result, claimed damages for loss of property valued at N$699 460.63 and interest plus costs.
The defendant denied liability and averred that, by the time the police officers arrived at the scene of the accident, most part of the consignment of the truck was already looted. The defendant further averred that when the police officers arrived at the scene, they were outnumbered by the large crowd who loaded the items in their vehicles and left. The defendant further alleged that the police officers took reasonable steps to call for reinforcement and recover some of the items.
SIBEYA J considered the matter and held that:
- Where the probabilities do not resolve the matter, the court can resort to the credibility of witnesses in order to find in favour for the one or the other party. This includes considering the candor and demeanor of witnesses, self-contradiction or contradiction with the evidence of other witnesses who are supposed to present the same version as him or her or contradiction with an established fact.
- It was an established objective fact that based on the two-minute video footage which was received into evidence in court, which constituted real evidence, it was visible that a lot of items were being looted from the truck in the presence of the police officers together with Ms. Berry and Mr. Blaauw.
- The probabilities in the evaluation of mutually destructive evidence between the parties favour the evidence of Ms. Berry that considering the volume consisting of a large amount of boxes and the high speed of the loot in the two minute video footage it can be concluded that the consignment was intact at the time that Ms. Berry arrived at the scene.
- The plaintiff’s claim is based on an omission on the part of the police and in such a case the plaintiff is required to prove that the defendant owed him a duty of care, meaning that the police officers at the scene had a legal duty to protect his properties.
- A reasonable police officer in the position of the Cst Swartbooi, Cst Dreyer, W/O Haifete and W/O Mwilla could have foreseen that if they assisted Ms. Berry, Mr. Blaauw and their family in their attempt to protect the consignment they could have prevented the members of the public from the looting the consignment.
- The police officers failed to take control of the scene of accident and to prevent the members of the public from looting and that the failure by the police officers to protect the consignment which they are dutifully required to do caused or probably caused the members of the public to loot the consignment of the plaintiff.
- Looting has the capacity to undermine the rule of law, democracy, and constitutionalism as it sends out a message of being inconsiderate to other people and their properties.
- The plaintiff should succeed in his claim and is awarded damages.
As a result, the plaintiff was successful with him claim and he was awarded damages in the amount of N$ 692 460.63. The court also ordered costs of suit including costs of one instructing and one instructed legal practitioner.
Blaauw v The Minister Safety and Security (HC-MD-CIV-ACT-DEL-2021-01927) [2023] NAHCMD 43 (9 February 2023)