WHEN THE PROTECTORS DO NOT TAKE CARE – ATHOL GORDON
When Pedro De Lima walked out of the business that he ran on 6 March 1996 he had no idea of the catastrophic effect the events which had occurred on 14 November 1994 would have on his life.
De Lima casually called his cousin to him from across the road with the intention of catching up. Little did De Lima know that on 14 November 1994, his cousin, X, had applied to the South African Police Service for a licence to possess a .38 special Rossi handgun.
The conversation took an unexpected, hostile turn and months later De Lima found himself confined to a wheelchair for the rest of his life. As he later learnt, De Lima had suffered his injury as a result of a single gunshot wound inflicted upon him by X using the very handgun which he had been licensed to possess by the South African Police Service.
After a legal battle lasting no less than 8 years, De Lima succeeded in proving that members of the South African Police Service were to blame for the injuries which he suffered in the shooting as it was their negligence which had enabled his cousin to come into possession of the handgun which he used to shoot De Lima.
In a recent challenge to this finding the Minister of Safety and Security, under whose ambit of responsibility all members of the South African Police Service fall, failed to satisfy the Supreme Court of Appeals that his servants were not negligent in issuing a firearm licence to X. The grounds upon which the Supreme Court of Appeals found that the Minister’s servants had been negligent were that some months before he applied for the issue of a firearm licence in terms of the Arms & Ammunition Act 75 of 1969, X had been charged with common assault at a police station very close to the one at which he subsequently applied for his firearm licence.
It transpired that this charge of common assault had been withdrawn. At the time that he applied for the issue of his firearm licence, and in response to a question put to him in terms of the regulations promulgated under the Arms and Ammunition Act 75 of 1969 X was asked whether he had been convicted of a criminal offence before. To this he replied that he had been charged with common assault in the year before but that this charge had been withdrawn. The police officer who entertained the application and interviewed X paid no further heed to the information and recommended to his then commanding officer that the firearm licence application should be approved. The commanding officer similarly paid no heed to this information regarding the previous common assault charge and simply endorsed the recommendation that the firearm licence application be granted. Ultimately, the firearm licence application was authorised by the Central Firearm Registry and X was authorised to posses the handgun in question.
The evidence at De Lima’s trial against the Minister of Safety and Security showed that the previous charge of common assault had been withdrawn after X had made written representations to the Senior Public Prosecutor in whose district he had been charged. These representations were contained in an affidavit in which X pleaded for the withdrawal of the charges. In this affidavit, X explained that at times when he was under pressure he would lose control of his temper and fly into an extremely angry state. The policeman who interviewed X in respect of his firearm licence application did not ask him why the common assault charge had been withdrawn. This same policeman, and his then commanding officer similarly failed to satisfy themselves that the reason for the withdrawal of the common assault charge was not relevant to the application which they were considering. For De Lima, it is a great pity that they didn’t.
Were they simply to have asked X to provide information concerning the basis on which the common assault charge had been withdrawn they would have been alerted to the fact that he was a person who was temperamentally unsuitable to posses a firearm. The standing orders issued by the then commissioner of police to all members of the South African Police Service considering firearm licence applications required, since at least 1979, that the members of the South African Police Service considering such applications had to satisfy themselves that the applicant was, amongst other things, temperamentally suited to possessing a firearm.
Had X been required to provide information concerning why the common assault charge had been withdrawn, this affidavit would have come to light. X had a duty to satisfy his interviewer that he was temperamentally fit to possess a firearm. His interviewer, in turn, once advised of the withdrawn common assault charge, had a duty to be satisfied that, notwithstanding the events surrounding this charge, X was temperamentally suited to possessing a firearm. Tragically, his interviewer did not think it necessary to require X to provide further information concerning the common assault charge.
The Supreme Court of Appeals found that the interviewer, his commanding officer and the officer who ultimately approved the application at the Central Firearm Registry were negligent in not making further enquiries into the withdrawal of the previous common assault charge. The Court held further that by failing to make the necessary enquiries, the South African Police Service had failed to establish (when they could reasonably have done so) that X was temperamentally unfit to possess a firearm.
But there is more to this tale of woe. Once X’s firearm license to possess a firearm had been approved, he was contacted by the South African Police Service to collect it. On 3 November 1995 X duly presented himself at his local police station and picked up his license. From there he went to a firearm dealer and collected his .38 Rossi special handgun. Only thing is, between the time at which he had applied and the date on which he collected his license, X had been charged with murder after he had slit a man’s throat with a knife. Yes, indeed, he was out on bail, facing a charge of murder, when the South African Police Service called him and asked him to collect his firearm license.
X was duly convicted of murder, in respect of the knife incident, and of attempted murder in respect of the shooting of De Lima.
It is of some comfort, in the light of such events, to know that recent substantive amendments to legislation in terms of which firearms are possessed will go some way towards prevent a repeat of incidents such as this. However, how many firearm licenses are presently in possession of members of our society who should never have been licensed to possess them in the first place?
Editor’s note: De Lima was represented in the Cap High Court and the Supreme Court of Appeals