Van Eeden v Minister of Safety and Security

• Jurisdiction: South Africa
• Judge: Swart J
• Judgment Date: 09 November 2000
• Counsel: E W Dunn SC (with K W Lüderitz) for the plaintiff. P J J de Jager SC (with C F J Brand) for the respondent.
• Hearing Date: 06 November 2000
• Citation: 2001 (4) SA 646 (T)
• Court: Transvaal Provincial Division
• Docket Number: 21626/99

Swart J:

On or about 5 August 1998 the plaintiff who was only 19 years old at the time, was accosted by a certain André Gregory Mohammed. At gunpoint Mohammed forced her into her residence where he, among other things, indecently assaulted her, B forced her to perform oral sex on him and in addition raped her. Subsequently he stole the plaintiff's motor vehicle and various other items belonging to her.

As a result of the sexual assault on her and the theft of her motor vehicle and other items, the plaintiff instituted this civil action against the Minister of Safety and Security as the defendant. C

The plaintiff's cause of action is based on delict in which she claims damages for, among other things, the infringement of her dignity and for emotional shock and trauma, anxiety, as well as for the medical expenses she has already incurred and will incur in the future. In addition damages are claimed for the patrimonial loss she has sustained D as a result of the theft of her motor vehicle and the other items belonging to her.

By agreement between the parties it was ordered that the question of quantum be disposed of separately from the issues pertaining to the merits of the action. In view of the fact that the defendant has conceded negligence on the part of the South African Police Service E (SAPS) and the general foreseeability of harm, the only issue to be decided is whether, in all the circumstances of this case, the SAPS owed a legal duty to the plaintiff to ensure that, by acting reasonably, Mohammed would not escape from police custody, as he did.

Both parties closed their cases without presenting evidence. The case F could thus be disposed of on the facts agreed to in the pleadings and in the pre-trial minute. The parties and their legal representatives are to be complimented upon the sensible and practical manner in which this trial was handled. The defendant and his legal representatives are similarly complimented upon the comprehensive co-operation with plaintiff in presenting her case, presenting as defence what amounts to G only a single legal point. I express my appreciation to council for well-researched and helpful heads of argument.

The following are the salient facts. As indicated, the plaintiff was 19 years old at the time she was sexually assaulted and raped by Mohammed. Mohammed was arrested and taken into custody by the SAPS on H 7 January 1999 in respect of various criminal activities referred to in annexure GE1 to the pre-trial minute. This includes 14 cases where dockets were apparently opened prior to his arrest on 7 January 1999. The charges included housebreaking with intent to steal and theft, theft of a motor vehicle, crimen iniuria, indecent assault and rape and armed robbery. These offences appeared to I have been committed in Durban.

After his escape five further charges were recorded in Pretoria/ Centurion, including indecent assault, rape and robbery. Annexure GE1 to the pre-trial minute accurately sets out Mohammed's general modus operandi and the type of criminal activities he has committed. J

Swart J

On or about 22 May 1998 Mohammed escaped from the C R Swart A police cells in Durban where he had been detained for the purposes of an identification parade. The circumstances pertaining to Mohammed's escape were recorded in the SAPS' official document, titled 'Notification of Escapes from Police Custody', being annexure GE2 to the pre-trial minute. B

The following description of Mohammed's escape is recorded therein:

'The accused (ie Mohammed) was on temporary transfer from Westville Prison for the purpose of an identification parade. When the investigation officer returned to the cells to collect prisoner (ie Mohammed) it was discovered that he was no longer there. Early investigations revealed that during 09:00 roll-call of the day he escaped, the prisoner (ie Mohammed) made requests to phone his C wife. According to the prisoners in the same cell as his, he never returned from roll-call. It is suspected that he escaped from where he had made his phone call from.'

The defendant, however, points out that it has since come to his notice that Mohammed succeeded in escaping from police custody as a result of the fact that a security gate had not been closed. It is D evident that Mohammed's escape from custody could easily have been prevented by the exercise of reasonable care.

The defendant admits that the SAPS realised that Mohammed was a dangerous person and that his continued retention was necessary for the protection of the general public, their personal fundamental rights and E property.

At the time of his escape on or about 22 May 1998 the investigating officer, one Superintendent André Booysen, expected that Mohammed would commit further sexual offences. In this regard Booysen's viewpoint and the profile he had developed of Mohammed are recorded in a letter dated 10 July 1998, being annexure SAPD1 to F the pre-trial minute. It subsequently also appeared to Booysen that Mohammed was a serial rapist and that, according to his general modus operandi, young white women between the ages of 18 and 35 years, such as the plaintiff in the present case, were the primary targets for the series of rapes and indecent assaults that he committed. Available statistics show that the number of escapes from G police custody is a matter of concern and that it constitutes an embarrassment to the SAPS.

In the report compiled by the Institute for Security Studies it is stated, among other things, that:

'The high number of escapes from police holding cells over the past three years (3 595, 3 838 and 3 818 for 1996, 1997 and 1998 H respectively) not only feeds the public's negative perceptions of the SAPS, but also gives an indication to the extent of negligence and corruption within the police service.'

The increase of crimes against women and children in the 1990s has been such that the SAPS declared such crimes to be a 'policing priority' since 1997. I

As indicated above, the question of law raised in the matter, concerns the question whether the SAPS in the circumstances of this case owed a legal duty to the plaintiff to reasonably prevent Mohammed's escape from police custody. The test for determining the wrongfulness of omissions in delictual actions for damages in our law is well-settled and J

Swart J

has repeatedly been reaffirmed. See, for example, the following: In Minister of Police v Ewels A 1975 (3) SA 590 (A) at 597A - B the judgment reads:

'Dit skyn of dié stadium van ontwikkeling bereik is waarin 'n late as onregmatige gedrag beskou word ook wanneer die omstandighede van die geval van so 'n aard is dat die late nie alleen morele verontwaardiging ontlok nie maar ook dat die regsoortuiging van die gemeenskap verlang dat die late as onregmatig beskou behoort te word en B dat die gelede skade vergoed behoort te word deur die persoon wat nagelaat het om daadwerklik op te tree. Om te bepaal of daar onregmatigheid is, gaan dit, in 'n gegewe geval van late, dus nie oor die gebruiklike ''nalatigheid'' van die bonus paterfamilias nie, maar oor die vraag of, na aanleiding van al die feite, daar 'n regsplig was om redelik op te tree.'

In Knop v Johannesburg City Council 1995 (2) SA 1 (A) the judgment reads at 27G - I: C

'The general nature of the enquiry is stated in the well-known passage in Fleming The Law of Torts 4th ed at 136, quoted in the Administrateur, Natal case supra at 833 in fine - 834A:

''In short, recognition of a duty of care is the outcome of a value judgment, that the plaintiff's invaded interest is deemed worthy D of legal protection against negligent interference by conduct of the kind alleged against the defendant. In the decision whether or not there is a duty, many factors interplay; the hand of history, our ideas of morals and justice, the convenience of administering the rule and our social ideas as to where the loss should fall. Hence, the incidence and extent of duties are liable to adjustment in the light of the constant shifts and changes in community attitudes.'' E

The enquiry encompasses the application of the general criterion of reasonableness, having regard to the legal convictions of the community as assessed by the Court.'

Prof J C van der Walt 'Duty of Care, Tendense in die Suid-Afrikaanse en Engelse Regspraak' (1993) 56 THRHR 552 F at 562 stated:

'Hedendaagse skrywers, gerugsteun deur tendense in die regspraak, is dit betreklik eens dat die toets vir onregmatigheid - en die bestaan al dan nie van 'n ''duty'' in bepaalde gevalle - op 'n veel breër en gesofistikeerde basis berus as die betreklik eenvoudige ''foreseeability''-toets. Die basiese toets is 'n judisiële waarde-oordeel of die eiser se betrokke aangetaste belang in die omstandighede en tipe van situasie, ooreenkomstig die boni G mores (die regsopvatting van die gemeenskap) beskermingswaardig is; indien wel, is daar 'n regsplig; andersins is daar geen regsplig op die dader (verweerder) nie.'

Former Chief Justice Corbett during the course of a lecture dealing with policy decisions ('Aspects of the Role of Policy in the Evolution of the Common Law' 1987 SALJ 52 at 67 - 8) stated: H

'In this process the Judge would no doubt be influenced by concepts of natural law, by international law norms and by the way in which the particular problem is handled in other comparable systems of jurisprudence. He would draw upon his knowledge and experience gained as an educated, responsible and enlightened member of society, upon the contact with an insight into his fellow humans which his professional I career has given him; and he would draw upon his continuing perceptions of the attitudes of the community around him.'

Preceding that the former Chief Justice stated:

'. . . the policy decisions of our courts which shape and, at times, refashion the common law must also reflect...