The Dudley Lee Case : a new approach to factual causation and its implications for transformative jurisprudence

• Author: Anmari Meerkotter
• Published date: 01 January 2015
• Date: 01 January 2015
• Pages: 273-289
• DOI: 10.10520/EJC197695

The Dudley Lee Case: A new approach to

factual causation and its implications for

transformative jurisprudence*

Abstract

The Constitutional Court (CC) judgment of Lee v Minister of Correction Services 2013 2

SA 144 (CC) is a recent contribution to transformative constitutional jurisprudence in the

field of the law of delict. This matter turned on the issue of factual causation in the context

of wrongful and negligent systemic omissions by the state. In this case note, I explore the

law relating to this element of delictual liability with specific regard to the traditional test for

factual causation – the conditio sine qua non (‘but-for’) test. In particular, I note the

problems occasioned by formalistic adherence to this test in the context of systemic state

omissions as evidenced by the SCA judgment in the same matter. I also consider the

manner in which English courts have a ddressed this problem. Thereafter , I analyse the

CC’s broader approach to the determination of factual causation as one based on common

sense and justice. I argue that this approach endorses a break from a formalistic

application of the test and constitutes a step towards an approach which resonates with

the foundational constitutional values of freedom, dignity and equality. Furthermore, it

presents an appropriate solution to the problems associated with factual causation where

systemic omissions are concerned. I then consider the transformative impact of the Lee

judgment. In particular, I argue that the broader enquiry favoured by the CC facilitates the

realisation of constitutionally guaranteed state accountability, and amounts to an extension

of the existing norm of accountability jurisprudence. Hence, I contend that the judgment

presents a further effort by the Constitutional Court to effec t wholesale the

constitutionalisation of the law of delict, as well as a vindicatory tool to be used by litigants

who have been adversely affected by systemic state omissions.

I would like to thank Professor Deeksha Bhana and Mr Cornelius Visser for their guidance in the

*

writing of this case note, a previous version of which constituted my submission for the Independent

Research Essay which I completed towards my undergraduate degree. I would further like to pay

tribute to Mr Dudley Lee, who died on 21 May 2014 – may his victory inspire chan ge.

274 (2015) 20 SAPL

1 Introduction

The law of delict has developed considerably to make room for the inclusion of the

norms and values espoused by the Constitution, pursuant to the mandate

contained in section 39(2) of the Bill of Rights. Of fundamental importance is the

1

development and endorsement of the norm of state accoun tability in landmark

cases, such as Carmichele v Minister of Safety and Security (Centre of Applied

Legal Studies). The latest addition to our constitutional delictual jurisprudence

2

comes in the form of Lee v Minister of Correctional Services. Wh ile some

3

elements of a delict, such as wrongfulness, have been considerably re-imagined

in order to give ef fect to the constitutional vision, other elements have attracted

relatively little attention. The element of factual causation falls within this latter

category and it is this element that receives the attention of the Constitutional

Court (CC) in this recent judgement.

The traditional test for factual cau sation has long been problematic. T he

potential of this test to give rise to unjust results is evident in the jurisprudence of

both South African and foreign courts. Nevertheless, the test has been adhered

to formalistically. Given its potential to give rise to injustice, the test was an ideal

candidate for re-evaluation to bring it in line with our new society, founded upon

the values of freedom, dignity and equality. This is precisely what the

Constitutional Court did, thereby continuing its efforts to effect a wholesale

constitutional transformation of the law of delict.

In this note, I consider the Lee case more carefully. In part II, I will set out the

basic factual background of the case, as well as the findings by the relevant

courts. In part III, I critique the judgment and evaluate pertinent issues in two

respective sections: in the first I consider the im pact of the judgment on the

element of factual causation as it operates in a constitutional context, and in the

second, I discuss the transformative impact of the judgment, with particular

reference to the norm of state accountability.

2 Lee v Minister of Correctional Services

The matter, which eventually made its way to the Constitutional Court, arose out

of the following factual matrix. Mr Dudley Lee, the plaintiff, was incarcerated at

Pollsmoor Prison (‘Pollsmoor’) from November 1999 to September 2004 on a

number of criminal charges including fraud, counterfeiting and money laundering.4

Mr L ee was detained in the E-Section of the maximum security prison for the

Davis ‘Transformation: The constitutional promise and re ality’ (2010) 26 SAJHR 85 at 87.

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2001 4 SA 938 (CC).

2

2013 2 SA 144 (CC).

3

Minister of Correctional Services v Lee 2012 3 SA 617 (SCA) p ara 1.

4