5 April 2009 by

The reasonable man in an increasingly unreasonable society

 Recent front page news was the tragic shooting of a three year old Johannesburg boy. Apparently a teenager's cellphone was stolen outside the boy's nursery school. The teenager's father, allegedly a trained marksman, went home irate to collect his pistol before chasing the suspected thief. One shot ricocheted off a fence and killed the toddler.

The September 2008 law reports record the case of Saayman v Visser 2008 (5)SA 312(SCA). Mr Visser engaged a security company to guard his house as he was away regularly for periods up to a month and his security company despatched a guard armed with a 12-bore shotgun. Gideon Saayman on his way home late from a party decided to overturn a pot plant in Visser's garden. The prank failed as only the top of the pot moved and Gideon and friend were leaving when Gideon was shot and fell down.

Mr Saayman, Gideon's father, sued the security company, the guard and Visser for damages.

The Supreme Court of Appeal considered whether Visser was negligent in employing the security company. Saayman argued that a reasonable person in the position of Visser would have foreseen that an armed guard on residential property was dangerous, that there was a possibility both of trespassers on the property and of those trespassers being injured. Considering those possibilities, the reasonable person would have warned the public by a prominent sign and adequate lighting and would have instructed the security company to load their weapons with blank cartridges before using live ammunition. As Visser had not taken these steps, it was argued that he had been negligent and should be liable for damages. As the security company was an independent contractor it was argued that Visser was only liable for the damages arising from his own negligence and not the negligence of the guard or security company.

The facts were that Visser had used the security company previously to protect another property and when engaging the company he asked specifically about the guard's qualifications and was assured that the guard was proficient in firearm use. The Court found that Visser had foreseen the risk of danger inherent in employing an armed guard and, in addition, he had obtained an assurance that the guard was properly trained. The Court concluded that "to have expected further enquiry and steps would be placing too heavy a burden on him and other home owners in his position". Many of us employ armed guards within our neighbourhoods without any enquiry as to the qualifications of the guards that will be deployed and those guards are usually independent contractors. One wonders whether Visser would have been visited with liability for the injuries to Gideon if he had not asked about the guard's qualifications.

Often when considering the emotional issue of personal safety, the inclination is to meet force with force, irrespective of the risks. This case, the tragic story of the toddler in Johannesburg and similar stories featured in the press daily, make His Lordship

Mr Justice Navsa's words worthy of our attention:

"This case is a very sad and dramatic illustration of how steps taken by an increasingly desperate and hapless populace to protect their lives and homes against the crime wave in this country can have negative effects, particularly when it involves the use of firearms .... It demonstrates how far the consequences of rampant crime extend and how easily life can be lost in South Africa. It also serves as a warning to those who advocate a resort to lethal force (irrespective of circumstances) to thwart the threat of crime, against the awful results of such force, that are unfortunately all too predictable. On the other hand, it should also serve to prompt government to harness every available resource, as a matter of pressing priority, to end the scourge of crime before confidence in our Constitutional order is lost or abandoned."

Tim Fletcher
Director, Dispute Resolution: Litigation & Arbitration 

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