- Hanover Park homeowner loses R2.5 million damages claim against the City of Cape Town.
- Court finds a maritime flare was accidentally activated inside a concealed storeroom beneath the staircase.
- Judge Pangarker rules Metro Police could not reasonably have foreseen the hidden danger.
The High Court in Cape Town has dismissed a R2.5 million damages claim brought by Hanover Park resident Mark Stemmet, whose family home and spaza shop were destroyed in a fire during a Metro Police raid.
Stemmet and his wife owned the property and ran a neighbourhood spaza shop there. They were not home when Metro Police officers arrived early on 22 October 2010 with a search warrant for drugs, firearms, ammunition and illegal alcohol. During the search, a maritime distress flare ignited and destroyed the house, the shop and much of the family’s belongings.
One flare, two conflicting versions
The case depended on how the flare came to be discharged. Stemmet relied on the evidence of his neighbour Fozia Williams. She testified that she saw a Metro Police officer fire the flare from outside the property into the house just before the fire started. She insisted the flare travelled through the small entrance and into the interior of the home.
The City of Cape Town told a different story. Inspector Llewellyn Grove and Sergeant Deon Valentyn said that Sergeant Norman Absolon was searching a cramped, dark storeroom under the staircase. While moving crates, paint tins, a vacuum cleaner and a hosepipe, the flare was accidentally set off inside the storeroom during the search.
Judge M Pangarker accepted the City’s version. The judge wrote, "The only reasonable inference to draw is that the plaintiff and Ms Stemmet feigned ignorance of the storeroom."
Neighbour's evidence rejected
Williams was the only witness who said she saw the flare fired from outside. The court found her version unlikely because it would mean the flare travelled past or over a fruit and vegetable stall, through the small entrance and into the house while other Metro Police officers were still inside.
Her evidence was contradicted by Constable Lizette Miller, who had a clear view of the scene, as well as Grove and Valentyn, whose accounts placed the ignition inside the storeroom.
Judge Pangarker said that the Galante principle did not help Stemmet because the two versions were not equally believable or acceptable.
Why the negligence claim failed
The court found that accidentally setting off the flare did not mean the police were negligent. Judge Pangarker found that a reasonable police officer searching for drugs, firearms and ammunition could not have expected to find a maritime distress flare hidden among various items in a dark storeroom, let alone one that could go off. "The risk as it unfolded was simply not reasonably foreseeable," the judge said.
The court found that Valentyn used his torch to light up the small space while Absolon used both hands to move things. The judge said this was a reasonable way to search. No evidence doing things differently would probably have stopped the fire.
Rejecting Stemmet’s reliance on the doctrine of res ipsa loquitur, Judge Pangarker said, "Crucial facts were not within the exclusive knowledge of the defendant" because the police had not put the flare on the premises, the occupants controlled the property, and no one knew exactly how the flare was stored.
The court dismissed Stemmet's claim with costs, including the costs of an earlier postponement.
Get your news on the go. Click here to follow the Conviction WhatsApp channel.
