Lee v Minister for Correctional Services

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Nkabinde J, Skweyiya J and Van Der Westhuizen J
• Judgment Date: 11 December 2012
• Citation: 2013 (2) SA 144 (CC)
• Docket Number: 20/12 [2012] ZACC 30
• Hearing Date: 28 August 2012
• Counsel: M Donen SC (with M Bridgman and L Dzai) for the applicant. I Jamie SC (with K Pillay and D Pillay) for the respondent. A Hassim for the amici curiae.
• Court: Constitutional Court

Nkabinde J (Moseneke DCJ, Froneman J, Jafta J and Van der A Westhuizen J concurring):

Introduction

[1] Before this court is an application for leave to appeal against a B decision of the Supreme Court of Appeal [1] overturning a decision of the Western Cape High Court, Cape Town [2] (high court). The high court declared the respondent liable for the delictual damages suffered by the applicant as a result of contracting tuberculosis (TB) while in detention. Having rejected the applicant's claim on a narrow factual point on the application of the test for causation, the Supreme Court of Appeal upheld the respondent's appeal and absolved her from liability. C

[2] Primarily, the case concerns whether the applicant's detention and the systemic failure to take preventative and precautionary measures by the Correctional Services authorities caused the applicant to be infected D with TB while in detention. The complaint is that the unlawful detention and specific omissions violated the applicant's right to freedom and security of the person and the right to be detained under conditions consistent with human dignity, and to be provided with adequate accommodation, nutrition and medical treatment at state expense. [3] The question is whether the causation aspect of the common-law test for delictual liability was established and, if not, whether the common law E needs to be developed to prevent an unjust outcome.

[3] The relief sought in this court is essentially an order:

(a)

granting leave to appeal, upholding the appeal and setting aside the order of the Supreme Court of Appeal; and F

(b)

reinstating the high court order.

In the alternative to (a) and (b) above, the applicant seeks an order allowing him to amend his particulars of claim to include a claim for constitutional damages based on alleged unlawful detention and infringement of certain constitutional rights. G

Parties

[4] The applicant is Mr Dudley Lee (Mr Lee or plaintiff). The respondent is the Minister for Correctional Services (respondent or responsible authorities), [4] who is cited in her capacity as the minister responsible for H the conduct of the Department of Correctional Services pursuant to

Nkabinde J (Moseneke DCJ, Froneman J, Jafta J and Van der Westhuizen J concurring)

A certain provisions of the Correctional Services Act. [5] The Treatment Action Campaign, Wits Justice Project and Centre for Applied Legal Studies, jointly represented by Section 27, whose written submissions have been most helpful and for which we are grateful, were admitted as friends of the court (amici).

Facts B

[5] The facts are set out elegantly in the judgment of the Supreme Court of Appeal. I repeat those that are necessary for the purpose of this judgment and set out also the parties' statement of agreed factual C findings with specific reference to portions in the high court judgment and the Supreme Court of Appeal Judgment. [6]

[6] The applicant was incarcerated in the admission section at the maximum security prison at Pollsmoor [7] (Pollsmoor) from 1999 to 2004, D [8] but was released on bail for a period of approximately two months in 2000. He attended court on no fewer than 70 occasions. When inmates were transported for court attendance, they were stuffed into vans like sardines. At court they were placed into cells which were jam-packed. Those who appeared before the regional court were taken to E a separate, smaller cell which was not overly full. [9]

Nkabinde J (Moseneke DCJ, Froneman J, Jafta J and Van der Westhuizen J concurring)

[7] For most of his incarceration Mr Lee was housed in E-section of the A maximum security prison at Pollsmoor, in a cell designed for occupation by one person but which he shared with two other inmates. [10] At one stage, inmates at E-Section, including the applicant, were moved to the Medium B prison where they were detained in a communal cell with about 25 inmates for a period of time. [11] On being moved back to B E-Section the applicant was held in a communal cell until he was placed in a single cell again. [12]

[8] The following appeared from the statement of agreed factual findings: the applicant was not infected with TB when he arrived at Pollsmoor; the responsible authorities were 'pertinently aware of the risk' C of inmates contracting TB; [13] TB is an airborne communicable disease which spreads easily, especially in confined, poorly ventilated and overcrowded environments; Pollsmoor is notoriously congested and inmates are confined to close contact for as much as 23 hours every day — this providing ideal conditions for transmission; [14] on occasion, the lock-up total was as much as 3052 inmates and single cells regularly D housed three inmates; communal cells were filled with double and sometimes triple bunks; [15] the responsible authorities relied on a system of inmates self-reporting their symptoms upon admission to the prison and during incarceration; and the control of TB at Pollsmoor depends upon effective screening of incoming inmates, the isolation of infectious patients and the proper administration of the necessary medication over E the prescribed period of time. [16]

[9] The Standing Correctional Orders [17] (SCOs), as summarised by the high court, require inmates to be subjected to the effective screening as set out in clauses 4.1(a), [18] 4.4(a), [19] 6.1, [20] 6.2, [21] 14 and 15 [22] of ch 3 of the SCOs. F

Nkabinde J (Moseneke DCJ, Froneman J, Jafta J and Van der Westhuizen J concurring)

A [10] During his incarceration the applicant regularly underwent sputum tests, the results of which were negative until June 2003. [23] He was diagnosed with TB after three years of his incarceration. [24] Despite this diagnosis and the possibility that he would remain contagious for at least another two weeks, the applicant was returned to his cell where he was B confined for up to 23 hours with at least one other person. After his release in 2004 the applicant instituted an action for damages against the respondent in the high court.

High court

C [11] At the commencement of the trial the parties asked the high court to separate the issues relating to liability from those relating to the quantum of damages. The issue relating to liability was decided first, hence the declaratory order, [25] while

Nkabinde J (Moseneke DCJ, Froneman J, Jafta J and Van der Westhuizen J concurring)

quantum stood over for later determination. [26] A

[12] It is important to mention, with reference to the pleadings, how the issues were defined by the parties in the high court. The applicant's damages claim is said to have arisen as a result of the responsible authorities' negligent conduct, alternatively dolus eventualis because B they knew that their conduct placed inmates, including the applicant, at risk of TB infection. [27] It is pleaded that but for that unlawful conduct on the part of the responsible authorities, the applicant would not have been exposed to inmates who were actively infected with TB and further would have been treated and cured earlier. [28] In the premises, the applicant pleaded that it was the conduct of the responsible authorities C which caused his active infection with TB. [29]

[13] The pleadings establish that the applicant was imprisoned at Pollsmoor and that during the period of his imprisonment the responsible authorities failed to take adequate, or any, steps to protect him D against the risk of TB infection; failed, once he was diagnosed as actively infected with TB, to provide him with adequate medical treatment and medication to cure and prevent further spread and to adhere to his numerous requests for adequate treatment of TB. The said conduct and omissions, it is pleaded, thus violated the applicant's rights, including — E

(a)

under the common law, specifically his right to respect for and protection of his physical integrity;

(b)

in terms of the Bill of Rights, specifically the invasion of the rights to:

(i)

human dignity under s 10; [30]

(ii)

life under s 11; [31] F

(iii)

freedom and security of the person under s 12(1); [32] and

(iv)

be detained in conditions that are consistent with human G

Nkabinde J (Moseneke DCJ, Froneman J, Jafta J and Van der Westhuizen J concurring)

A dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition and medical treatment in s 35(2)(e); [33] and

(c)

ss 2(a) and (b) and s 12 under the Act [34] and its regulations.

Nkabinde J (Moseneke DCJ, Froneman J, Jafta J and Van der Westhuizen J concurring)

[14] The high court upheld the claim. It ruled in the applicant's favour A regarding the evidence pertaining to the breakdown of the healthcare system at Pollsmoor and the inadequacy of nutrition which played a role in the development and uncontrollable spread of TB during the applicant's incarceration. It held that the responsible authorities' omission(s) constituted a negligent breach of their constitutional and statutory duty B to protect the applicant's rights. [35] The high court held that the evidence tendered established that TB could be curtailed by introducing certain measures, including: (i) early identification of persons who are deteriorating and who may accordingly become vulnerable to contracting TB; (ii) early diagnosis of the disease; and (iii) effective treatment and proper nutrition. C

[15] The high court said that those measures would translate into —

(a)

the proper screening of incoming inmates, inclusive of a physical chest examination;

(b)

separating those who had or were suspected of having TB or were D obviously undernourished and vulnerable to TB;

(c)

the provision of adequate nutrition to those who were undernourished and otherwise vulnerable to TB;

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