Van der Spuy v Minister of Correctional Services
Jurisdiction | South Africa |
Judge | Leach J |
Judgment Date | 22 July 2002 |
Citation | 2004 (2) SA 463 (SE) |
Docket Number | 186/2001 |
Hearing Date | 20 May 2002 |
Counsel | L A Schubart for the plaintiff. P W A Scott for the defendant. |
Court | South Eastern Cape Local Division |
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 B 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 C 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. D The defendant also denied that the prisoners had escaped due to negligence on the part of his servants at the 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 E 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 F 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 G 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 employees' negligence in allowing the prisoners to H 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, ie 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 I 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, exh A, and the sketch plan, exh C, the J
Leach J
main block of the North End Prison is a somewhat forbidding monolithic edifice. Although it is not set precisely according to the A 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 south-west corner. South of the southern fence, B 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 C prison to pass through a security clearance process at this building before being 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. D
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 Allison Chambers, who had offered them a lift. E
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 south-west 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 F 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. G
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 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 H 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 south-western corner I 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 J
Leach J
where Allison's car was parked in the visitors' parking lot in order to call Martin Radue and afford him the A 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. B
Behind the main doors in the southern face of the building is a fairly large room 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 so-called 'contact visit'. There is a barred gate leading from the one section into the other. Prisoners C who receive what is known as 'non-contact 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 the course of a visit and opened only after the prisoners are removed from the visiting area and returned to the cells. D
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 E the third received a non-contact 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, F overpowered the only warder who was on 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 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, G 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, ie east of him, as he approached the boom H at the south-western 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' I 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...
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