News Item
October 20, 2003 - The Star
By Estelle Ellis
The police have lost their second multimillion-rand lawsuit over the negligent issuing of a firearm licence.
Cape High Court Judge Anton Veldhuizen's judgment on Friday in favour of Pedro de Lima, who was paralysed after being shot by an unstable gun-owner, follows on the heels of a similar ruling by the Supreme Court of Appeal.
In both cases the courts ruled that the police are liable for damages claims that could result in multimillion-rand payouts to the victims of mentally unstable people who had been issued with gun licences.
Last month the Supreme Court of Appeal ruled in favour of Stellenbosch student Ian Hamilton, who was shot and paralysed by Erna McArdell, a mentally unstable alcoholic Court rules in favour of man who was left paralysed.
His claim against the state totals about R19-million.
De Lima - whose damages have yet to be quantified - was shot and paralysed by Josi dos Santos in March 1996. About six years before the incident, Dos Santos was hospitalised after a psychotic incident and diagnosed as being anxious and depressed.
In March 1994 he was charged with assaulting a man with a stick, but charges against him were withdrawn.
He applied for a firearm licence towards the end of 1994 and was issued with one in June 1995. But before the licence was issued, Dos Santos was arrested for stabbing a man to death and slitting his throat, and was free on bail awaiting trial when he received his gun licence.
Judge Veldhuizen said the Supreme Court of Appeal had already answered the question of whether the police have a duty to investigate whether an applicant for a gun licence is a fit and proper person to own a firearm.
In Hamilton's case, five judges of the Supreme Court of Appeal said the answer was yes.
Judge Veldhuizen said it was agreed that none of the police officers who had handled Dos Santos's firearm application had conducted an independent investigation to ascertain if he was fit to possess a gun.
He said they should have queried why the assault charge was withdrawn, and ruled that this would have led them to an affidavit made by Dos Santos, in which he said: "I also have a history of a nervous condition and some time ago I suffered a nervous breakdown, and I was hospitalised ... at the Bellville Neuroclinic.
"Dos Santos also confessed during his trial that when he loses his temper, he cannot stop himself from hurting other people. Two psychiatrists also said he had a mood disorder and struggled to control his violent temper.
Judge Veldhuizen said: "The danger of allowing such a person to possess a firearm is self-evident ... In my judgment the police were negligent in ... issuing a firearm to Dos Santos, and this negligence caused De Lima's injury."
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Ian Hamilton's legal costs are underwritten by Constantia Insurance Company under a policy issued by Legal Protection Services.