Lee v Minister of Correctional services

10 July, 2021
2:55 PM

Minister of Correctional Services

 the CC expressed it as follows “In Ewels it was held that our law has reached a stage of
development where an omission is regarded as unlawful conduct when the circumstances of the
case are of such a nature that the open ended general criterion has since evolved into general
criterion for establishing wrongfulness in all cases not only omission cases.”
 The boni mores test is an objective test based on the criterion of reasonableness
 Basic question is according to legal convictions of the community and ilo all circumstances of the
case, the defendant infringed the interests of the plaintiff in a unreasonable manner.

Stedall v Aspling (Liability for omission AND negligence)

FACTS OF CASE
 Appeal has its origin in a tragic accident that occurred on 27 July 2004 at the appellant’s
home in Contantia, Cape Town when the respondents 30-month old daughter fell into a
swimming pool. In as much as she did not drown, by the time she was discovered floating
face down in the pool she had suffered severe brain damage.
Issue
 Consequently it confined itself to the inquiry whether the appellants’ failure to secure the
swimming pool gates so they could not be opened by a young child, and the second
respondent’s failure to keep C under constant observation, constituted negligence as
determined by the well-known test in that regard – namely, whether a reasonable person
would in the circumstances have foreseen that C might be injured by falling into the pool,
and taken reasonable steps to avert such harm.

ANALYSIS
Van Duivenboden, Nugent JA,
 stressed that a negligent omission should only be regarded as being wrongful ‘if it
occurs in circumstances that the law regards as sufficient to give rise to a legal duty to
avoid negligently causing harm’.
Hirschman NO & Hirschman v Kroonstad Municipality 1914 OPD,
 The court concluded that in these circumstances, placing ashes on an open, unfenced
and unprotected piece of ground close to a public street, without taking any precautions to
avoid accidents, amounted to an act of negligence.
Further analysis
 In the light of these circumstances, and although it is not necessary to discuss the
question of negligence in any greater detail, in my view, the respondents failed to establish
that negligence on the part of the appellants led to C being injured.
 There was never any liability with regards to omission as there was a duty on the
parents to protect the child from any danger instead of leaving it to the home owner who
was not their applicants child.

K v Minister of Safety and Security (Vicarious liability)

Facts
  Ms. N K, the applicant, seeks damages in delict from the Minister of Safety and Security, the
respondent, on the basis that she was raped by three uniformed and on-duty policemen after she
had accepted a lift home from them when she found herself effectively stranded in the early hours
of the morning.
Issue
 The case raises the scope of the vicarious liability of the Minister of Safety and Security under
our law.
Analysis
In Minister of Police v Rabie,
 The question was whether his employer, the Minister of Police, was vicariously liable for the
damages suffered by the plaintiff. Jansen JA, for the majority of the Court holding the Minister
liable formulated a test for determining vicarious liability in such cases, which has since been
applied in many cases.
 “It seems clear that an act done by a servant solely for his own interests and purposes, although
occasioned by his employment, may fall outside the course or scope of his employment, and that
in deciding whether an act by the servant does so fall, some reference is to be made to the
servant’s intention. The test is in this regard subjective.
 On the other hand, if there is nevertheless a sufficiently close link between the servant’s acts
for his own interests and purposes and the business of his master, the master may yet be liable.
This is an objective test.”
 In determining whether the Minister is liable in these circumstances, courts must take account
of the importance of the constitutional role entrusted to the police and the importance of
nurturing the confidence and trust of the community in the police in order to ensure that their
role is successfully performed. In this case, and viewed objectively, it was reasonable for the
applicant to place her trust in the policemen who were in uniform and offered to assist her.
Conclusion
 When the policemen – on duty and in uniform – raped the applicant, they were simultaneously
failing to perform their duties to protect the applicant. In committing the crime, the policemen not
only did not protect the applicant, they infringed her rights to dignity and security of the person.
In so doing, their employer’s obligation (and theirs) to prevent crime was not met. There is an
intimate connection between the delict committed by the policemen and the purposes of their
employer. This close connection renders the respondent liable vicariously to the applicant for the
wrongful conduct of the policemen.
K v Minister of Safety and Security8 and held that there was a sufficiently strong link between
Mr van Wyk‘s actions and his employer‘s business to justify the imposition of vicarious liability

F v Minister of Safety and Security

Facts
 It raises the question whether the Minister of Safety and Security2 (Minister) should be held
vicariously liable for damages arising from the brutal rape of a thirteen year old girl by a policeman
who was on standby duty

ISSUE
 The substantive issue is whether the state is vicariously liable for damages arising from the rape
of a young girl committed by a policeman who was on standby duty.
Majority judgment in the SCA
Nugent JA, writing for the majority, held that the state was not liable because
1. Because Mr van Wyk was not on duty, he, unlike the policemen in K, could not be considered to
have been engaged in the business of the police service and to have breached his duty to protect
Ms. F when he committed the rape.
2. An off-duty police official has no duty to protect members of the public and cannot therefore be
held personally liable for his or her failure to protect a victim.

Minority Judgment
 Maya JA, writing for the minority, said that although the rape had nothing to do with the
performance of Mr van Wyk‘s official duties, there was a sufficiently close link between his acts for
personal gratification and the business of the police service. Ms. F was induced to trust, and
accept a lift from, Mr van Wyk because he was a policeman. The minority found that he had
placed himself on duty when he undertook to take Ms. F home
Two tests application to the determination of vicarious liability
 One applies when an employee commits the delict while going about the employer‘s business.
This is generally regarded as the standard test.
 The other test finds application where wrongdoing takes place outside the course and scope of
employment. These are known as deviation cases, the current matter in this case is that of a
deviation case. Feldman (Pty) Ltd v Mall is a pivotal common law authority on deviation cases.
Paragraph (42).
Analysis
 The pivotal enquiry is therefore whether there was a close connection between the wrongful
conduct of the policemen and the nature of their employment. That is the question that must be
asked in determining the state‘s vicarious liability in this matter.
The Minister‘s vicarious liability will arise only if a sufficiently close connection
exists between the policeman‘s delictual conduct and his employmen t.
 The establishment of this connection must be assessed by explicit recognition of the normative
factors that point to vicarious liability including the constitutional mandate of the state, to
establish a credible and efficient police service on which the public ought to be able to rely for
protection from, and prevention of, crime. That should be a police service worthy of the trust of
the public and one to which vulnerable members of the public ought to turn readily for protection
in times of need.

Cape Town Municipality v Bakkerud (liability of omission)

Facts
 Respondent, an elderly lady, lives in Mount Nelson Road, Sea Point in Cape Town. She was
walking along the pavement of that street towards her home. There were two holes in the tarred
pavement which had been there for at least six months. She stepped into one of the holes,
stumbled, and fell. She had been aware of the existence of the holes but “must have been thinking
about other things” when she stepped into them.
Analysis
 Secondly, they did not decide that the relevant empowering legislation per se conferred, either
expressly or by necessary implication, absolute or even relative immunity. Nor of course could
they have so decided; the legislation was manifestly purely empowering legislation and it was
silent on the question of what obligations might arise in the law of delict if damage was suffered
Conclusion
 In the circumstances, it is unnecessary to subject to any further scrutiny the factual foundation
for the existence of a legal duty and a finding that there was culpa in failing to fulfil it

Kruger v Coetzee (Introduction of factual causation)

Facts
 It concerns a farming venture that was embarked upon by Mrs. Duvenhage and her husband,
which they intended conducting through the medium of a close corporation in which they had the
sole interest
Analysis
Application of the Causa sine qua non;
 one must make a hypothetical enquiry as to what probably would have happened but for the
wrongful conduct of the defendant. This enquiry may involve the mental elimination of the
wrongful conduct and the substitution of a hypothetical course of lawful conduct and the posing
of the question as to whether upon such an hypothesis plaintiff’s loss would have ensued or not. If
it would in any event have ensued, then the wrongful conduct was not a cause of the plaintiff’s
loss; aliter, if it would not so have ensued. If the wrongful act is shown in this way not to be a
causa sine qua non of the loss suffered, then no legal liability can arise

Goliath v MEC Health Eastern Cape (negligence wrt Fault)

Facts
 On 8 April 2011 the appellant, Ms.Cecilia Goliath, who was then 44 years old, underwent a
routine hysterectomy for a fibroid uterus at the Dora Nginza Hospital in Port Elizabeth.
Issue
 is whether on the appropriate test (viewed in the circumstances set out above) the surgeon, the
theatre staff and swab sister (or any one of them) conducted themselves in a manner constituting
negligence.’
Analysis
 In English law “duty of care” is used to denote both what in South African law would be the
second leg of the inquiry into negligence and legal duty in the context of wrongfulness. As Brand
JA observed in Trustees, Two Oceans Aquarium Trust at , “duty of care” in English law “straddles
both elements of wrongfulness and negligence”.’
As Scott J put it in Castell v De Greef 1993 (3) SA 501 ©
 ‘The test remains always whether the practitioner exercised reasonable skill and care or, in
other words, whether or not his conduct fell below the standard of a reasonably competent
practitioner in his field
 res ipsa loquitur (the thing/ occurrence speaks for itself)

From <https://www.mondaq.com/southafrica/professional-negligence/276634/mistakes-are-not-always-negligent>
 Broadly stated, res ipsa loquitur (the thing speaks for itself) is a convenient Latin phrase used to
describe the proof of facts which are sufficient to support an inference that a defendant was
 negligent and thereby to establish a prima facie case against him. The maxim is no magic formula
It is not a presumption of law, but merely a permissible inference which the court may employ if
upon all the facts it appears to be justified It is usually invoked in circumstances when the only
known facts, relating to negligence, consist of the occurrence itself where the occurrence may be
of such a nature as to warrant an inference of negligence.
Conclusion
 Thus at the close of Ms. Goliath’s case, after both she and Dr. Muller had testified, there was
sufficient evidence which gave rise to an inference of negligence on the part of one or more of the
medical staff in the employ of the MEC who attended to her.
 Ms. Goliath had discharged the onus of proof resting upon her on a preponderance of
probability. In my view she unquestionably had. It follows that the appeal must succeed

Lee v Minister of Correctional Services

Facts
 The applicant was incarcerated in the admission section at the maximum security prison at
Pollsmoor from 1999 to 2004, but was released on bail for a period of approximately two months
in 2000. He attended court on no fewer than 70 occasions.
High court hearing
 The High Court upheld the claim. It ruled in the applicant’s favor regarding the evidence
pertaining to the break-down of the health care 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 its constitutional and statutory duty 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.
 (iii) effective treatment and proper nutrition.
Supreme Court finding
 Supreme Court of Appeal found that the applicant failed on a narrow factual point on the
application of the but-for test, but was successful on all other elements of the delictual claim,
including that Mr Lee was probably infected by a prisoner who had active TB while he was
incarcerated.
Causation
Factual causation
Conditio sine qua non theory or but-for test, according to this test the enquiry to determine a causal
link, put in its simplest formulation, is whether “one fact follows from another. Where by
 The test—
“may involve the mental elimination of the wrongful conduct and the substitution of a hypothetical
course of lawful conduct and the posing of the question as to whether upon such an hypothesis
plaintiff’s loss would have ensued or not. If it would in any event have ensued, then the wrongful
conduct was not a cause of the plaintiff’s
loss"
 In Ewels108 it was held that our law had reached the stage of development where an omission
is regarded as unlawful conduct when the circumstances of the case are of such a nature that the
legal convictions of the community demand that the omission should be considered wrongful.
 What was required, if the substitution exercise was indeed appropriate to determine factual
causation, was to determine hypothetically what the responsible authorities ought to have done
to prevent potential TB infection, and to ask whether that conduct had a better chance of
preventing infection than the conditions which actually existed during Mr Lee’s incarceration.
Substitution and elimination in applying the but-for test is no more than a mental evaluative tool
to assess the evidence on record