The minister of defence, in her official capacity, should be held liable for the damages suffered by a Bronkhorstspruit contract worker who was shot nine times during a robbery with an SANDF-issued automatic rifle.
This was the argument in the Pretoria High Court on Friday on behalf of Marius von Beneke, 51, who is claiming millions of rand from the minister.
The court heard that it was a miracle that Von Beneke was alive today.
One of the bullets from the SANDF-issued R4 hit him in the head, others hit vital organs and his pelvis was totally shattered.
He was in ICU for about five months and although the incident occurred more than eight years ago, he still walked with a walking stick.
“The robbers shot him from head to toe. It is a miracle that he survived,” his advocate, Piet de Jager SC, told Judge Neil Tuchten.
“It is amazing,” said the judge, adding that an R4 rifle had a high velocity and could therefore tear limbs apart.
Von Beneke came close to death during a robbery at a shopping complex near Bronkhorstspruit on March 7, 2003, when a robber, Vusi Mahlangu, shot him several times. Von Beneke’s business partner, who was standing next to him, was shot and killed.
Mahlangu was shot dead by police and his accomplices were arrested. They were tried and convicted of murder, attempted murder and armed robbery.
The court heard that the body of the assault rifle used by Mahlangu was stolen or went missing from the SANDF, at TEK Base in Pretoria, some time before January 2002.
It is not known whether an SANDF member stole it or if it simply went missing because of the army’s negligence, but the body of the rifle ended up in Mahlangu’s hands.
He took the rifle body to a Sergeant Jacob Motaung, who was in charge of the SANDF weapons store at the 4 SA Infantry base in Middelburg. The sergeant later confessed in an affidavit that he stole parts to make the rifle operational, and ammunition.
It was common cause between counsel for the SANDF and that of Von Beneke that the soldier knew Mahlangu planned to use the rifle in a robbery. This was the rifle used to shoot Von Beneke.
De Jager argued that the defence minister should be held liable, as the sergeant in charge of the ammunition store provided the equipment to a robber, knowing full well for what it was going to be used. The sergeant, De Jager said, was employed by the SANDF to secure dangerous military weapons and ammunition.
In terms of the constitution it was the SANDF’s duty to protect the public, he argued.
Counsel for the minister countered that the sergeant acted of his own accord and that the minister could not be held responsible for his actions.
But De Jager said if he had not been entrusted by the minister with the safekeeping of the arms, he would not have been in the position to hand the parts to a known robber.
De Jager noted that the Supreme Court of Appeal had developed the common law in 2003 to extend the protection of individuals in cases where the state could be held liable for the actions of its employees.
An example was a case in which the Constitutional Court ruled the minister of police liable for damages suffered by a woman who had been gang-raped by three policemen.
Although they did not rape her “on the instruction” of the minister, he was still liable for the actions of these policemen, who were in uniform and whose protection the woman had sought, only to be raped.
Advocate Peter Mohlamonyane argued that the sergeant acted independently of the minister and she thus could not be held responsible for his behaviour.
If the court allowed her being held responsible, it would open the flood gates for other people to institute similar claims, he argued.
Judgment was reserved. - Pretoria News