31.7.2012 Marinda Botha whose son was killed by her husband, lost her case against the state in the Pretoria High Court yesterday. Picture: Etienne Creux

The mother of a four-year-old boy murdered by his father cried bitterly after a Pretoria High Court judge ruled, on a technicality, that she and her parents could not proceed with a R20 million damages claim against the authorities.

The family had argued that the powers that be failed them when they tried to safeguard the child from his aggressive father.

Tiaan Botha, an only child, was shot dead by his father, Jimmy Botha, who then committed suicide, on a Sunday in May 2008. The little boy had been on a weekend visit to his father’s home.

Marinda Botha and her parents, Pieter and Alida van der Merwe, of Sinoville, argued that the tragedy could have been prevented.

They said if the authorities - ranging from officials at the office of the family advocate and psychologists to a magistrate and the police - had paid attention to the mother’s warnings, the child’s life might have been saved.

She had told them that her husband, whom she was divorcing, was an unstable and aggressive man who would harm her only child.

Acting Judge Louis Vorster found that the family could not proceed with their claim.

The respondents were listed as the ministers of justice and police, and several officials, such as a magistrate and members of the family advocate’s office.

The officials were to be sued in their personal capacities.

It emerged the family’s lawyer, contrary to legal requirements, had not served the officials with notice of the intention to institute the damages claim. Also, the letters of demand sent to the offices of the two ministers had been issued outside the time frame prescribed by law.

Counsel for the family argued that they did not need to send letters of demand to the officials, as they were being sued in their personal capacity.

He said the family complied with the law regarding the letters to the two ministers. He asked the court for permission to proceed with the matter even if it found the letters had been sent outside the time frame.

Counsel for the ministers and the officials argued that the law was clear and although this was a tragic case, the court could not allow the family to deviate from it.

Judge Vorster said he had to stick to the law, and departments of state had to be informed of the intention to bring a civil action against them before summons was issued.

He said it was clear the officials whom the family hoped to sue in their personal capacities were in fact state functionaries because at the time they had been performing their duties in that capacity.

Botha hoped to claim R10m from the respondents and her parents R5m each for the trauma and anguish they had suffered since the boy’s death.

Botha said she had gone to the police on that fateful Sunday and asked them to go to her husband’s home in Groblersdal as he had not returned her son from a weekend visit and she had a “gut feeling” something was wrong.

The police had not acted immediately and the boy was later shot dead by his father, she said.

The judge said he could not foresee her and her family succeeding with their claim against the officials as the policeman who handled the complaint had said he handed the dossier to his superior soon after Botha spoke to him.

He was not convinced a court would find that any of the respondents would have been able to prevent the tragedy.

The judge refused the application with costs. The family face a legal bill of hundreds of thousands of rand.

Botha cried bitterly after the proceedings and said she did not wish to comment as she was devastated. - Pretoria News