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IN THE HIGH COURT OF SOUTH AFRICA(SOUTH EASTERN CAPE DIVISION)
Case No.: 186/01Date delivered:
In the matter between:
LEON VAN DER SPUY Plaintiff
and
THE MINISTER OF CORRECTIONAL SERVICES OFTHE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA Defendant
J U D G M E N T
LEACH, J:
On 8 April 2000, the plaintiff sustained certain bodily injuries when he was shot
outside the North End Prison in Port Elizabeth. In due course he instituted
action against the defendant, the Minister of Correctional Services, contending
that the person who had shot him had been a prisoner in the gaol who had
escaped from custody due to negligence on the part of the members of the
prison service acting within the course and scope of their employment with the
defendant, and that the latter was therefore vicariously liable to him for the
damages he had sustained in consequence of his injuries.
While admitting in his plea that the escape had taken place, that a number of
shots were fired at the material time and that the plaintiff was shot in the right
forearm during the course of the incident, the defendant denied that the plaintiff
had been shot by an escaping prisoner and averred that he had been shot by a
member of the public. The defendant also denied that the prisoners had
escaped due to negligence on the part of his servants at prison. In the
alternative, the defendant pleaded that even in the event of this Court finding that
the plaintiff had in fact been shot by an escaping prisoner and that his servants
had been negligent in allowing the prisoners to escape, it was not reasonably
foreseeable that their conduct in allowing the escape would cause the plaintiff to
be injured in the circumstances in which his injuries were caused.
And so the matter came to trial. At the outset, at the request of the parties, I
made an order separating the issues relating to the merits from those relevant to
the quantum of damages which are to stand over for determination at a later
stage. Consequently I am presently only concerned with the merits of the
plaintiff’s claim.
Notwithstanding the terms of the plea, when the matter came to trial before me I
was informed from the Bar that the defendant now conceded that his employees
had been negligent in allowing the prisoners to escape from the prison on the
day in question. That being so, the trial was truncated and limited solely to the
question of the identity of the person who had shot the plaintiff (whether he was
an escaping prisoner or member of the public) and whether the shooting of the
plaintiff was a reasonably foreseeable consequence of the defendant’s
2
employees’ negligence in allowing the prisoners to escape (the issue raised by
the defendant in its alternative plea). Ultimately the matter was argued not on the
issue of foreseeability but, rather, on whether the damage was too remote i.e. the
issue of so called “legal causation”, in respect of which foreseeability is only one
of the factors to be taken into account. However, the parties appeared to assume
that the question of remoteness had been adequately raised as an issue in the
pleadings and I intend to proceed on the basis that their assumption is correct.
I therefore turn to deal with the events of the day in question. As is apparent
from the photographs exhibit “A” and the sketch plan exhibit “C”, the main block
of the North End Prison is a somewhat forbidding monolithic edifice. Although it
is not set precisely according to the points of the compass, for ease and
convenience I intend to proceed on the basis that its outer walls run from north to
south and east to west. It is surrounded by a tarred road beyond which is a high
security fence. The main entrance to the prison block is set in the centre of its
southerly face. A gate equipped with a swing boom is set into the security fence
near the southwest corner. South of the southern fence and to the east of the
boom gate that I have mentioned, is a grassy area set aside for visitors’ parking.
Public entrance to the secured area is obtained through a building set in the
security fence to the south of the main block, almost directly opposite its main
entrance. Apparently it is prison procedure to require persons visiting the prison
to pass through a security clearance process at this building before being
3
admitted into the secured area of the prison. For purposes of this judgment I
shall refer to this building as the “visitors’ reception facility”. Between it and the
southern side of the prison, there is provision made for the parking of vehicles
within the security area.
On the day in question, the plaintiff went to the prison with his girlfriend, one
Jennifer Nelson, in order to visit the latter’s daughter who was being detained in
the prison. One Martin Radue, the boyfriend of Jennifer’s daughter,
accompanied them and they travelled to the prison in the motor vehicle of an
acquaintance, one Alison Chambers, who had offered them a lift.
It was the first time the plaintiff had been to the prison. Arriving there at about
midday, he and his companions proceeded to the boom at the southwest corner
of the security fence and, having explained the purpose of their visit, were
allowed through. They parked in front of the southern face of the main prison
block but certain prison officials told them that they were not permitted to do so
and directed them back through the boom to the visitors’ parking area that I have
already mentioned. Having parked there, the plaintiff and Jennifer left their other
two companions at the car and proceeded to the visitors’ reception facility.
According to the plaintiff, there was no one there. It is apparent from the
evidence that a Ms Pressly and a Mr Ngibe, employees of the defendant, should
have been on duty in the building screening visitors to the prison. Whether they
4
were in fact there at the time the plaintiff says they were not or why the plaintiff
failed to see them, were not issues canvassed during the course of evidence but
are irrelevant to the outcome of the present proceedings.
In any event, the plaintiff and Jennifer then proceeded back to the main prison
block by way of the boom gate. Entering the main entrance in the centre of the
southern side of the block, they went through the necessary formalities in order
to see Jennifer’s daughter. Having done so, they left the building and, walking
around the southwestern corner of the building, proceeded in a northerly
direction to the female section where they were finally able to see Jennifer’s
daughter.
As only two visitors at a time are allowed to see a prisoner, the plaintiff cut short
his visit and, leaving Jennifer with her daughter, walked back to where Allison’s
car was parked in the visitors’ parking lot in order to call Martin Radue and afford
him the opportunity of visiting Jennifer’s daughter. On seeing him approach,
Radue left the car and, walking through the boom gate, passed the plaintiff and
went off towards the female section. The plaintiff proceeded on his way towards
the boom gate, unaware that a well planned prison escape was underway at that
very moment.
Behind the main doors in the southern face of the building is a fairly large room
5
divided into two by a set of narrowly spaced steel bars. The front section closest
to the main doors is a reception area. Beyond the bars is an area in which
prisoners and their visitors can meet and talk to each other during a socalled
“contact visit”. There is a barred gate leading from the one section into the
other. Prisoners who receive what is known as “noncontact visits” remain
separated from their visitors who do not pass through this gate but remain in the
reception area and speak through the bars to the detainees they are visiting.
The gate between the two sections should obviously be closed and locked during
a course of a visit and opened only after the prisoners are removed from the
visiting area and returned to the cells.
On the day in question, however, this procedure was not followed. At the time
the plaintiff was visiting in the female section of the prison, three male prisoners,
Mzwandile Java, Jigima Masuku and Mzukisi Nabo were being visited in the
male section behind the main entrance at the south of the building. Two of them
received contact visits while the third received a noncontact visit. Unfortunately,
at some stage the gate in the bars between the two sections was opened in order
to allow visitors who had held contact visits to leave before the prisoners had
been secured in the cells. As it was opened, the three prisoners I have
mentioned, together with their visitors stormed it, overpowered the only warder
who was duty in the reception area. They then kicked open the main door of the
prison and proceeded to run out of the building. This appears to have been part
6
of a well orchestrated escape plan as, at the same time, a person who had been
at the visitors’ reception facility, took out a firearm and fired off a shot before
threatening Ms Pressly with it. He then moved past her office, opened the door
in the visitors’ reception facility facing the main prison and fired a number of
shots towards the prison as the escaping prisoners and their associates ran from
the prison block towards him, presumably in order to sow confusion amongst the
prison staff.
The firing of the first shot alerted the plaintiff to what was happening to his left i.e.
east of him as he approached the boom at the southwestern corner of the
security fence. He saw the front wooden door of the prison block open and four
or five people, including the three escaping prisoners, run out and across the
tarmac towards the visitors’ reception facility. One of the prisoners ran behind
that building to the security fence over which he proceeded to climb. The
plaintiff confirmed that as the other persons neared the visitors’ reception facility,
a further number of shots were fired. Shortly after that, he saw four people
coming out of the side door of the visitors’ reception facility and run into the
visitors’ car park. Two of them were dressed in green prison uniform while the
other two were wearing civilian clothing.
He noticed that Allison had started her vehicle and was driving towards him.
Realizing that an escape was underway and appreciating that it was a dangerous
7
situation, he told her to get away and indicated that she should drive off.
Although her route out of the parking area was blocked by a vehicle partially
obstructing the ramp leading from the parking area to the road, she proceeded
past it and over the curb before turning to her left and driving away from the
prison.
By this stage the two escapees and their companions had boarded a green
Nissan light delivery vehicle (commonly known as a “bakkie”, a description used
during the course of evidence which I shall use for the purposes of this
judgment). This bakkie followed after Allison’s car, taking an almost identical
path. According to the plaintiff, as it bore down towards him, he clearly saw the
two escaping prisoners standing on its loadbody and that they were both armed
with handguns. The taller of the two, who had a silver firearm, pointed it at him
and fired two shots. He was emphatic that he saw the recoil of the weapon as it
was fired. He felt a blow to the arm as well as in the midriff and later ascertained
that he had been shot through the right arm and that his belt buckle had been
damaged, either by the bullet which had passed through his right arm or by the
other shot which had been fired at him.
The bakkie then drove off and he moved back to the boom gate where he
ascertained that the guard who had been there shortly before was no longer
there. He then went back to the main entrance to the prison block where,
8
ultimately, he received medical assistance before eventually being removed by
ambulance.
The plaintiff was emphatic that he had been shot by one of the escaping
prisoners. In order to rebut this allegation, the defendant called a single witness,
one Corrine Pressly, who, as I have mentioned, was on duty in the visitors’
reception facility at the time of the escape. She was first alerted to something
being wrong when the first shot went off in close proximity to where she was
seated in an office in the visitors’ reception facility. She turned around and
shouted to the people seated nearby to get down onto the floor and to crawl into
the bathroom. On doing so, she found herself face to face with a man who was
pointing a firearm directly at her. This person then moved to the safety gate
controlling access into the area within the security fence. Pulling open the gate
(the evidence was that it was equipped with an electronic lock that was not
functioning) he then opened the door facing the prison block and, leaning through
it, fired several shots. At that time she became aware that the front door of the
prison was open and that a number of prisoners and civilians were running from
the prison block towards the visitors’ reception facility. She immediately realized
that an escape was underway. She testified that there was a great deal of
shouting and confusion and that, when those running from the prison block
reached her building, she was immediately confronted by one of the prisoners,
whom she identified as Nabo, who grabbed hold of her, swore at her and told her
9
that she was coming with them. Having no wish to be dragged off as a hostage,
she set up stout resistance. She told him not to be stupid and started hitting him
with the metal detecting instrument she had in her possession (usually used to
run over visitors before they enter the prison to check that they have no
concealed metal objects with them). With this, the other escaping prisoner also
grabbed hold of her and the struggle continued.
Ms Pressly is a fairly short woman but I hope she will forgive me for describing
her as being of generous proportions. She put up stiff resistance and, although
her uniform was torn, the escapees were not able to dislodge her from where she
had wedged herself into a doorway, even though they dispossessed her of her
metal detector with which they struck her. Eventually she kicked out, striking
Nabo in the groin and causing him to stagger backwards. With this, he and the
other escaping prisoner left her alone and ran towards the car park. Looking
after them, she saw the two of them and a person dressed in civilian clothes
climb onto the back of the bakkie which was then driven off following behind
another vehicle which also went out of the car park (presumably the vehicle of
Allison). According to her, she saw a person (presumably the plaintiff) who she
felt had tried to stop the bakkie but stated that the civilian on the back, who was
armed with a firearm, lifted up his hand and fired three shots at him. The bakkie
then drove away.
10
The essential difference between this version, presented by Ms Pressly in her
evidence in chief, and that of the plaintiff was the identity of the person who had
shot him. However, notwithstanding Ms Pressly’s evidence, I am satisfied that
the plaintiff was indeed shot by one of the escaping prisoners as he alleges.
The plaintiff, who impressed as a genuine and honest witness, was in a far better
position than Ms Pressly to identify the person who in fact shot at him, something
she readily conceded under crossexamination. Moreover, she had clearly been
through a terrifying experience immediately before the shooting of the plaintiff
took place, an experience that has obviously wrought havoc with her. When
obliged in the witness box to call to mind the events of that day, she shook like a
leaf and at times, was unable to speak or control her emotions. She admitted to
having been haunted by the experience and has, apparently, been boarded by
the Department of Correctional Services as a result. She also admitted under
crossexamination that she may have been mistaken in regard to the person who
shot from the back of the bakkie. I have no doubt that she genuinely believes that
it was the civilian who fired at the plaintiff but, in the light of her concession that
she may be mistaken in that regard and the effect which the terrifying experience
she underwent has had upon her, I am satisfied that she is probably mistaken
and that there is no reason for me to disbelieve the plaintiff. Indeed I did not
understand Mr Scott, who appeared on behalf of the defendant, to seriously
contend otherwise.
11
During the course of argument, plaintiff’s counsel raised a further factual issue
which it is convenient now to discuss. Although there was no direct evidence as
to when the two escaping prisoners who ended up on the back of the bakkie
obtained possession of the firearms they had when the plaintiff was shot, it was
submitted on behalf of the plaintiff that it could be inferred that such weapons had
been smuggled to them within the prison block itself, that the escapee’s visitors
had therefore not been properly searched before they were allowed to enter the
prison and that the person responsible for ensuring that they were properly
searched, Ngibe, an employee of the defendant, had not been called to rebut
such inference. Accordingly, so the argument went, as this inference favoured
the plaintiff, it should therefore be drawn against the defendant.
The drawing of inferences in favour of one party upon his opponents failure to
call a witness is often a difficult horse to ride – compare for example Galante v
Dickinson 1950 (2) SA 460 (A) at 465 and Titus v Shield Insurance Co. Ltd 1980
(3) SA 119 (A) at 133. What is clear, however, is that an inference adverse to
the party who fails to call a material witness can only be drawn where that which
it is sought to infer can, in truth, be regarded as an inference and not mere
speculation. There can of course be no inference unless there are objective
facts from which to infer the other facts which it is sought to establish but, if there
are no positive facts proved from which inference can be made, the method of
inference fails and one is left with speculation or conjecture – see for example
12
Motor Vehicle Assurance Fund v Dubuzane 1984 (1) SA 700 (A) at 706 and the
authorities there cited.
In the present case, for example, had the evidence established that the two
escapees were in possession of firearms when they reached the visitors’
reception facility, the inference may well have been almost inescapable that the
persons who had visited them in the main prison block had smuggled the
weapons to them. But the evidence of Ms Pressly clearly excludes that to have
been the case. As I have mentioned, she described in some detail how she had
wrestled with the two detainees. In particular, she described how Nabo had
grabbed hold of her clothing with both his hands and that the other escapee who
had confronted her had also grabbed hold of her. She fought them off and was
not dislodged from her resistance by them striking her with the metal detector
that they had taken from her. Had her assailants already been in possession of
firearms at that stage they would, in all probability, have had them in their hands
which does not appear to have been the case. Moreover, if either of them been
in possession of a firearm, he would almost undoubtedly have threatened Ms
Pressly with it. This, too, did not happen. From these facts, the only inference
which can be made is not that which the plaintiff has argued should be drawn
but, on the contrary, that the two escaping prisoners were not yet in possession
of the firearms at the time they escaped from the main prison block until some
stage after Ms Pressly had repelled their attempt to abduct her. As the plaintiff
13
saw them both with firearms shortly after they boarded the bakkie that was
waiting for them in the parking area, the inference is irresistible that they came
into possession of their weapons for the first time at about that time. In any
event, notwithstanding the defendant’s failure to call Ngibe, I cannot find as a
matter of inference that the escaping prisoners’ visitors had equipped them with
firearms before they escaped from the main prison block.
That then brings me to consider the argument whether the injuries plaintiff
sustained as a result of being shot by one of the escaping prisoner are too
remote from the admitted negligence of the defendant’s servants in allowing the
prisoners to escape in the first place for the defendant to be held liable for
damages. In regard to this issue, it is important at the outset to call to mind
precisely what I have been asked to decide and it is necessary to remind oneself
that causation in the law of delict involves two distinct enquiries. The first is
whether the defendant’s wrongful act was a cause in fact of the loss suffered by
the plaintiff – socalled “factual causation”, determined by the “butfor” test as to
whether a postulated cause is a causa sine qua non of the loss. If it is, then the
second enquiry is as to socalled “legal causation” i.e. whether and to what
extent the defendant should be held liable for the loss sustained by the plaintiff –
see: International Shipping Co. (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 700 –
701 and Minister of Safety and Security v Van Duivenboden) 2002 (6) SA 431
(SCA) at 448 – 9 para. [24]. It is this latter inquiry which is often referred as the
14
issue of “remoteness of damage” – see: Siman & Co. v Barclays National Bank
1984 (2) SA 888 (A) at 914 F – H and the authorities there cited.
As I understood the parties, it is common cause that the negligence of the
defendant’s servants which led to the three prisoners escaping, constituted a
cause of the plaintiff being shot (as had it not been for the escape, the plaintiff
would not have been injured) and, that being so, the issue is solely one of “legal
causation” viz. whether the loss suffered by plaintiff should be regarded as being
too remote for the defendant to be held liable.
That the issue is one of legal causation must be borne in mind in considering the
effect of the admission of negligence made by the defendant. In the course of
their argument, both parties referred to the well known test of culpa set out by
Holmes JA in Kruger v Coetzee 1966 (2) SA 428 (A) at 430E – F as follows:
”For the purposes of liability culpa arises if –
(a) a diligens paterfamilias in the position of the defendant –
(i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him
patrimonial loss; and
(ii) would take reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps”.
Although this is the classic formulation which has consistently been applied, the
15
Supreme Court of Appeal recently restated the test in Mukheiber v Raath and
Another 1999 (3) SA 1065 (SCA) at 1077 E – F by adopting the following test as
proposed by Prof. Boberg in the Law of Delict at 390:
“For the purposes of liability culpa arises if –
(a) a reasonable person in the position of the defendant –
(i) would have foreseen harm of the general kind that actually occurred;
(ii) would have foreseen the general kind of causal sequence by which that harm occurred;
(iii) would have taken steps to guard against it, and
(b) the defendant failed to take those steps”.
This latter formulation involves a narrower test for foreseeability than that
propounded in Kruger v Coetzee, supra by relating it to the consequences
produced by the conduct in question and effectively conflating negligence and
socalled “legal causation” in order to eliminate the problems associated with
remoteness – see the judgment of Scott JA in Sea Harvest Corporation v
Duncan Dock Cold Storage 2000 (1) SA 827 (SCA) at 839.
Essentially, the test in the Mukheiber case, supra involves a consideration both
of factual causation and of remoteness in order for culpa to be established. But
Scott JA stated in the Sea Harvest case, supra at 839 E – F that he had not
understood the judgment in the Mukheiber case to have unequivocally embraced
16
the relative theory of negligence and went on to observe that there probably can
be no universally applicable formula appropriate to every case. Clearly, the
defendant’s concession that his servants had been negligent in permitting the
escape to take place did not embrace an admission that a reasonable person in
their position would have foreseen harm of the general kind that actually
occurred and the general kind of causal sequence by which that harm took place
as this would have amounted to an admission that the loss suffered by the
plaintiff was not too remote. Instead both counsel founded their respective
arguments upon the test prescribed by Holmes JA in Kruger v Coetzee, supra
and conducted the matter on the footing that the admission of negligence was
made solely in respect of the escape and not in regard to the subsequent harm
suffered by the plaintiff.
Bearing that in mind, I turn to consider the question of remoteness. In dealing
with “legal causation” (or whether the damages can be regarded as being too
remote) Corbett JA in the International Shipping Company Case, supra referred
with approval to the following summary by Flemming in The Law of Torts 7th ed at
173:
“The ……….. problem involves the question whether, or to what extent, the defendant should have to answer for the consequences which his conduct has actually helped to produce. As a matter of practical politics, some limitation must be placed upon legal responsibility, because the consequences of an act theoretically stretch into infinity. There must be a reasonable connection between the harm threatened and the harm done. This inquiry, unlike the first, presents a much larger area of choice in which legal
17
policy and accepted value judgments must be the final arbiter of what balance to strike between the claim to full reparation for the loss suffered by an innocent victim of another’s culpable conduct and the excessive burden that would be imposed on human activity if a wrongdoer were held to answer for all the consequences of his default.”
In S v Mokgethi en Andere 1990 (1) SA 32 (A) at 39 – 40 Van Heerden JA
mentioned a number of criteria referred to in various authorities as being relevant
to the determination of legal causation, including the absence of a novus actus
interveniens, approximate cause, direct cause, foreseeability and “adekwate
veroorsaking” before concluding “at 40 I – 41 A:
“Wat die onderskeie kriteria betref, kom dit my ook nie voor dat hulle veel meer eksak is as ‘n maatstaf (die soepele maatstaf) waarvolgens aan die hand van beleidsoorwegings beoordeel word of ’n genoegsame noue verband tussen handeling en gevolg bestaan nie. Daarmee gee ek nie te kenne nie dat een of selfs meer van die kriteria nie by die toepassing van die soepele maatstaf op ’n bepaalde soort feitekompleks subsidiêr nuttig aangewend kan word nie; maar slegs dat geen van die kriteria by alle soorte feitekomplekse, en vir die doeleindes van die koppeling van enige vorm van regsaanspreeklikheid, as ’n meer konkrete afgrensingsmaatstaf gebruik kan word nie.”
Similarly, in Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4)
SA 747 (A) at 765 A – B (in a passage referred to with approval in OK Bazaars
(1929) Ltd v Standard Bank of South Africa Ltd 2002 (3) SA 688 (SCA) at 697 E
– F) Corbett CJ described the test as being:
“…. a flexible one in which factors such as reasonable foreseeability, directness, the absence or presence of a novus actus interveniens, legal policy, reasonability, fairness and justice all play their part .”
Importantly, it was also pointed out by Botha JA in Smit v Abrahams 1994 (4) SA
18
at 17 E – F that it is wrong to regard the question of reasonable foreseeability as
being the single decisive criteria in the determination of liability and that while
reasonable foreseeability can be used as a subsidiary test in the application of
the flexible approach, it did not displace it.
In the Sea Harvest case, supra Scott JA stated (at 840 D – E):
“The problem is always to decide where to draw the line, particularly in those cases where the result is readily foreseeable but not the cause. This is more likely to arise in situations where, for example, one is dealing with a genus of potential danger which is extensive, such as fire, or where it is common cause there is another person whose wrongdoing is more obvious than that of the chosen defendant. It is here that a degree of flexibility is called for. Just where the inquiry as to culpability ends and the inquiry as to remoteness (or legal causation) begins – both of which may involve the question of foreseeability – must therefore to some extent depend on the circumstances . . . . . In many case the facts will be such as to render the distinction clear, but not always. Too rigid an approach in borderline cases could result in attributing culpability to conduct which has sometimes been called negligence ‘in the air’”.
The emphasis in this passage is mine. The learned judge of appeal’s comments
are particularly relevant to the present case where it is indeed common cause
that the wrongdoing of the escapee who shot the plaintiff is more obvious than
that of the defendant’s servants and where the issue is whether the defendant
should be held liable for the plaintiff’s damages by reason of his servants having
negligently allowed the escapee to be in a position to shoot the plaintiff.
However, although a new intervening cause such as the negligent or intentional
wrongful conduct of a third party may often result in the harm suffered being too
remote, each case must be decided in the light of its own particular facts and
19
circumstances and, depending on the facts, an intervening cause may well not
break the chain of causation. As was said by Nugent JA in Ok Bazaars (1929)
Ltd v Standard Bank of South Africa Ltd supra at 699 para. [33]:
“I have already drawn attention to the fact that the test for legal causation is, in general, a flexible one. When directed specifically to whether a new intervening cause should be regarded as having interrupted the chain of causation (at least as a matter of law if not as a matter of fact) the forseeability of the new act occurring will clearly play a prominent role (Joffe & Co Ltd v Hoskins and Another 1941 AD 431 at 4556; Fischbach v Pretoria City Council 1969 (2) SA 693 (T); Ebrahim v Minister of Law and Order and Others 1993 (2) SA 559 (T) at 566BC; Neethling et al (supra at 205); Boberg The Law of Delict at 441). If the new intervening cause is neither unusual nor unexpected, and it was reasonably foreseeable that it might occur, the original actor can have no reason to complain if it does not relieve him of liability”.
Essentially, it seems to me that a common sense approach has to be adopted
having regard to the various criteria mentioned in these authorities, including the
question of foreseeability, in order to consider whether the harm complained of
should be regarded as being too remote. Bearing all of this in mind, I turn to the
facts of the present case.
For some inexplicable reason, details of the criminal backgrounds of the
escapees and any propensity on their part to comment crimes of violence were
not placed before me. All I know is that during the course of her testimony Ms
Pressly stated that one of the escapees was being held for murder and was
“quite dangerous” and that she knew that he was a “dangerous person”, although
she was unable to recall whether he was classified as a dangerous prisoner.
20
More detailed evidence may well have been vitally important. This is clear from a
brief consideration of a number of recent decisions in our courts in which
negligent failures to restrain dangerous persons who then caused injury have
attracted liability. Thus, in Seema v Lid van die Uitvoerdenderaad vir
Gesondheid, Gauteng 2002 (1) SA 771 (T), a case in which a seriously disturbed
mental patient who was negligently allowed to escape from a mental institution
proceeded to kidnap and rape the plaintiff’s minor daughter, the defendant,
whose servants had allowed the escape was held liable for damages. Similarly,
the Minister of Safety and Security was held liable to a plaintiff who was shot by a
person where a number of police officers who knew that he was unfit to possess
a firearm and was inherently dangerous had negligently failed to take steps
under s. 11 of Act 75 of 1969 to ensure that he be deprived of his weapons –
see: Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA).
The Minister was also held liable where a plaintiff was raped after the police had
negligently allowed a dangerous criminal who was likely to commit further sexual
offences to escape from custody some months before – see: Van Eden v
Minister of Safety and Security 2003 (1) SA 389 (SCA) .
In the last mentioned case, stemming from the State’s constitutional duties and
as the police had held control over the rapist who was known to them to be a
dangerous criminal who was likely to commit further sexual offences against
women should he escape, and as measures to prevent the escape of such a
21
dangerous criminal could reasonably and practically have been required of the
police, the Supreme Court of Appeal held that the police had owed the appellant
a duty to act positively to prevent the escape, that the existence of such a duty
accorded with the legal convictions of the community and that there were no
considerations of public policy militating against the imposition of such a duty –
compare further: Carmichele v Minister of Safety and Security 2001 (4) SA 938
(CC). Similarly, in the present case, it seems to me that the defendant servant's
were under a duty to protect individuals by taking active steps to prevent
dangerous persons held in the prison from escaping into the community if they
were likely to commit acts of violence if they did so escape.
Although the reasoning in Van Eden’s case was relevant to the assessment of
unlawfulness on the part of the police (causation in that case having been
admitted) it also seems to me to be relevant to the question of causation. After
all, legal policy plays its part in the assessment of remoteness and it seems to
me that where employees of the State owe a duty to act positively to prevent a
dangerous criminal being freed from the bonds of custody, the existence of that
duty is relevant to the issue of legal causation when the criminal proceeds to
escape and then injures a member of the public as the possibility of that
consequence taking place is directly related to the duty to prevent the escape in
the first place.
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In addition, while foreseeability may only be one of the criteria to which one must
have regard in the assessment of remoteness, it is an important factor to be
taken into account. In this regard it is important to remember that while the
general manner of its occurrence must be reasonably foreseeable, the precise or
exact manner in which the harm occurs need not be foreseeable – see for
example, the Sea Harvest case, supra, at 840 B – C.
In my view, the general manner of harm suffered by the plaintiff in the present
case was reasonably foreseeable. The implication of harm being caused during
the course of a prison escape must be anticipated. Persons locked up in prison
often resort to the use violence to overcome persons who resist their attempts to
escape. By the same token, in my view, the possibility of violence being done to
persons other than those who actually seek to actively oppose a prison escape is
also foreseeable. For example, hostages may be taken and injured in the
process, innocent persons may be accidentally struck by flying bullets or, indeed,
intentionally injured either to cause a diversion or in an attempt to avoid a later
identification. These are but a few of numerous examples which readily spring
to mind.
This leads to what is to me a crucial issue viz. whether the plaintiff was shot in
order to facilitate the escape or whether the shooting was in no way connected
thereto. The latter might be the case if, for example, the escapee for some
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reason wished to harm the plaintiff who, purely by coincidence, happened to be
in the vicinity at the time. On the other hand, if the plaintiff was shot in order to
create a disturbance and to discourage pursuit of the bakkie as it was driven
away from the prison, the shooting could be regarded as being part and parcel of
the escape itself.
The latter is far more probable than the former. We do not have the advantage
of the testimony of the person who shot the plaintiff to explain his actions, but
there is nothing to indicate that he was in any way known to the plaintiff. The
most probable explanations which present themselves are that he thought, by
shooting at the plaintiff, he would contribute to the chaos the events up until then
had caused and that he would discourage any person from pursuing the bakkie,
or that he shot the plaintiff because he perceived him to be attempting to prevent
his flight.
In regard to this latter issue, although the plaintiff testified that he did not in fact
attempt to stop the persons in the bakkie or prevent them from driving away, the
very real possibility exists that those on the bakkie thought that he was in fact
attempting to do so. He had certainly indicated to Alison that she should drive
away and his actions at that time may have been misinterpreted by those on
the bakkie. Certainly they were so misinterpreted by Ms Pressly who, as I
have said, testified that she felt that the person who was shot had attempted to
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stop the bakkie. In my view, the possibility of harm being done to any persons
who attempted to prevent escaping convicts from fleeing from a prison is readily
reasonably foreseeable as is the possibility of harm being done in those
circumstances to a person whose actions, although not intended to prevent the
escape, might be misinterpreted by those escaping.
In the circumstances, I am satisfied that although reasonable man may possibly
not have foreseen the precise manner in which the plaintiff came to be injured
(about which I express no view), as a reasonable man would generally have
foreseen violence being done to persons in the vicinity of a prison should
prisoners (particularly potentially dangerous prisoners) attempt to escape, the
shooting of the plaintiff should be regarded as being part and parcel of the
general type of harm which was reasonably foreseeable.
Taking this into account and bearing in mind the other factors that I have
mentioned, including the evidence that at least one of the escapees was a
dangerous person and that the defendant and his servants owed a duty to the
public at large to prevent potentially dangerous persons escaping into the
community, I have concluded that the damage suffered by the plaintiff was not so
remote that the chain of causation should be regarded as having been
interrupted and that the defendant is therefore liable to the plaintiff for whatever
damages he may have suffered as a result of the injuries he sustained in the
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shooting. The plaintiff is accordingly entitled to a declaratory order to that effect.
That brings me to the question of costs. The relevant question here is whether a
costs order should issue at this stage the proceedings. Where the merits of a
dispute are decided as a separate issue at the outset with the issues relevant to
the quantum of the damages standing over, the courts have, in appropriate
cases, issued a costs order in favour of the plaintiff who succeeds on the merits –
see for e.g. Baptista v Stadsraad van Welkom 1996 (3) SA 517 (O), Faiga v
Body Corporate of Dumbarton Oaks & Another 1997 (2) SA 651 (W) at 669 and
Grootboom v GraaffReinet Municipality 2001 (3) SA 373 (E) at 381 – 382.
However, this is not an inflexible rule,and the facts of each case must be taken
into account to consider whether it is appropriate in any given case for a costs
order to issue at this stage. One of the relevant factors to be taken into account
is whether the plaintiff will ultimately recover costs on the High Court scale and it
would certainly be grossly unfair to the defendant to award the plaintiff High
Court costs at this stage of proceedings when there is the possibility of the
ultimate award falling within the jurisdictional limits of the magistrate’s court.
In casu, although there is no detailed medical evidence before me, I know that
the plaintiff suffered a gunshot wound of the arm. It is certainly premature for me
to comment on the advisability of his actions in suing in High Court, but his
injuries do not appear to me to be so severe that he will undoubtedly recover
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costs on the High Court scale notwithstanding the amount of his claim being far
in excess of the upper jurisdiction of the magistrate’s court.
In these circumstances I think it is fair to both parties to reserve the question of
costs for final determination once the quantum of damages has been resolved.
In the light of the aforegoing I grant the following order:
1. The defendant is declared to be liable to the plaintiff for whatever
damages he may have suffered arising from the bodily injuries he
sustained in the shooting incident which occurred outside the North
End Prison on 8 April 2000 which is the subject of these
proceedings.
2. Costs are reserved.
_________________________L.E. LEACH JUDGE OF THE HIGH COURT
Summary
Negligence remoteness of harm prison warders negligently allowing prisoners to escape during course of escape, prisoner intentionally shooting plaintiff, a member of the public who happened
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to be near the scene damage suffered by the plaintiff not too remote for Minister of Correctional Services to be held liable to the plaintiff.
Costs merits decided as a separate issue at the outset declarator in favour of the plaintiff whether plaintiff should be awarded costs at that stage or whether costs should stand over until determination of damages.
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