News Item
28 July 2003 - The Star
By Estelle Ellis
She was an alcoholic, suicidal, had tendencies to homicide and was declared dangerous. Yet the police gave her the go-ahead to legally own a gun.
In August 1994 Erna Lochiel McArdell shot a student at Stellenbosch university during a dispute over a parking spot.
The student, Ian Hamilton, was left paralysed for life. Ten months earlier McArdell had been issued with a licence by the Stellenbosch police even though she had a history of mental illness.
Hamilton is suing the minister of safety and security for R19-million in the Cape High Court, and won the first part of his case when the court ruled that he had a valid claim against the SA Police Service because it had failed to properly assess McArdell's licence application.
If the SAPS had investigated her it would have found that she could not handle a firearm at all, although she stated on her licence application that she was proficient in their use.
Four years previously she had a history of mental and emotional disturbance. She was hospitalised in 1990 for severe stress. After that she was under constant psychiatric treatment.
She was diagnosed as having a borderline personality disorder with paranoid tendencies.
One of her doctors refused to treat her after she had threatened to hit the doctor with a chair. In 1992 another doctor diagnosed her with "tendencies to homicide and suicide, and was dangerous".
In September 1992, doctors found she had cerebellar atrophy - a decrease in brain cells due to long-term use of alcohol. She abused Valium and used tranquillisers and anti-psychotic drugs.
On several occasions she had threatened to commit suicide. On one occasion she smashed a glass door with her bare hands. She had at least once been committed on an urgent basis to a psychiatric hospital.
Two days before she applied for a firearm licence, she consulted her psychiatrist about stress. She complained of palpitations and stress, and admitted to alcohol abuse.
McArdell was declared unfit to stand trial because of her emotional status.
About 3,5-million South Africans own firearms.
Statistics from the South African Institute of Race Relations show that in the first four years of the new South Africa, 3,5-million people were given permission to own about 4,2-million firearms. In the same period, half of all murders in the country were committed with firearms. Between 1994 and 1998, murders committed with firearms went up from 42 to 49%.
Experts say an increasing number of murders and violent crimes are being committed with legal guns.
These are the facts that judges of the Supreme Court of Appeal face next month when they have to decide on an appeal about the way in which the SAPS issues licences.
"Guns do not belong in the hands of drunks," was the judgment the Supreme Court of Appeal gave last year in the case of Dirk van Duivenboden (see article below).
"They also do not belong in the hands of mentally unstable people," the legal team for Hamilton will argue.
The legal team for the minister of safety and security is appealing against the Cape High Court's decision and will argue in the Supreme Court of Appeal on August 28 that:
Jeremy Gauntlett SC and Michael Donen SC will argue on behalf of Hamilton: "The minister of safety and security and the legislature will have to consider the full policy implications of their legal argument.
"It is in any event not an answer to the question of whether the police had a legal duty and failed to discharge it in a way that caused injury to Hamilton.
"It is not for us to contend, nor the court to hold, that in all applications for firearm licences exactly the same level of scrutiny and inquiry is required."
They will continue: "A firearm is manufactured to kill, and at least can inflict serious bodily harm. It is at once set apart from other devices common in industrialised societies, such as vehicles or other machinery, which, used badly, may have that consequence, but not that purpose."
But Fef le Roux SC and Renata Williams SC, arguing for the SAPS, will contend that the police are not required to investigate every little piece of information supplied by an applicant.
But, argue Gauntlett and Donen: "It is submitted that the inertia and passivity of the officials in question establish several failures to comply with standing orders."
Ian Hamilton's legal costs are underwritten by Constantia Insurance Company under a policy issued by Legal Protection Services.