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[2012] ZAECPEHC 15
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Jaftha v Minister of Correctional Services (1342/2009) [2012] ZAECPEHC 15; [2012] 2 All SA 286 (ECP) (28 February 2012)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE, PORT
ELIZABETH)
CASE NO: 1342/2009
Date
Heard: 24 February 2012
Date
Delivered: 28 February 2012
REPORTABLE
In the matter between:
MOEGAMAT FATIEG JAFTHA
…............................................................................
Plaintiff
and
THE HONOURABLE
MINISTER OF
CORRECTIONAL SERVICES
…..........................................................................
Defendant
______________________________________________________________________
JUDGMENT
______________________________________________________________________
GOOSEN, J:
The plaintiff, a
prisoner, sued the defendant for damages sustained when he was
attacked by a fellow inmate in the prison hospital
at St. Albans
Prison, Port Elizabeth. The plaintiff sustained a severe cut with a
surgical scalpel resulting in a wound to his
face from the left
temporal region down to his jaw line.
At the outset of the
trial the parties sought an order, in terms of rule 33(4) of the
Rules, separating the determination of the
issue of liability from
that of the quantum of damages that may have been suffered. A
separation of issues was ordered and the
matter proceeded solely on
the merits.
The issues at trial on
the merits were narrowly confined to the question as to whether
negligence on the part of the defendant’s
employees, the
relevant prison warders and/or other staff, was established. On the
pleadings it was admitted that on 16 May 2007
the plaintiff had been
attacked and cut by a fellow prisoner; that the cut was administered
using a surgical scalpel blade; and
that the attack had occurred in
the prison hospital at a time when the assailant was undergoing
medical treatment. It was also
admitted that the defendant owed to
the plaintiff a duty of care to ensure the plaintiff’s safe
custody, physical and psychological
integrity. The defendant denied
that it had breached this duty of care and pleaded that all
reasonable steps had been taken to
ensure the safe custody of the
plaintiff.
The facts giving rise to
the plaintiff’s claim are common cause or were not placed in
dispute. The defendant led no evidence
to contradict the evidence of
the plaintiff having closed its case without calling any witnesses.
On the morning of 16 May
2007 at approximately 6 am and whilst the prisoners were being
subjected to an early morning head count
and inspection, a fight had
broken out between the plaintiff and a fellow prisoner, one Mshiya.
What gave rise to the fight or
who initiated it was not addressed in
the evidence. What was explained is that the plaintiff had struck
Mshiya on the head with
a lock causing him to suffer an injury to
the head. Prison warders on duty intervened and separated the men.
According to the
plaintiff both he and Mshiya were assaulted by the
warders and were thereafter subjected to a strip-search. The lock
with which
the plaintiff assaulted Mshiya was confiscated. No other
weapons were found.
The plaintiff and Mshiya
were then ordered to be taken to the single cells. They collected
their clothes from the communal cell
in which they were then being
held, and were escorted to the single cells. According to the
plaintiff only one prison warder
accompanied them to the single
cells section. To get there involved a short walk of a few minutes
in which they had to go up
to another level in the prison building.
When they arrived at the single cells section there was no warder on
duty at the section.
The warder who was escorting the prisoners, a
Mr Ntanga, then took both the plaintiff and Mshiya to the hospital
section because
Mshiya required treatment to the wound to his head.
The plaintiff did not require any medical treatment. All the while,
according
to the plaintiff’s undisputed testimony, both he and
Mshiya were only under the guard of Mr Ntanga.
The hospital section is
apparently secured by a section door and a locked gate. Between the
section door and the gate there is
a waiting room facility in which
prisoners who are awaiting treatment can be securely held. Inside
the locked gate of the hospital
section there are offices and a
number of treatment rooms. The hospital section is usually staffed
by two or three nurses as
well as cleaning staff.
On arrival at the
hospital section both the plaintiff and Mshiya were taken through
the locked gate. Warder Ntanga handed over
Mshiya to a Nurse Mama
who was then on duty. Mshiya and Nurse Mama went into one of the
treatment rooms. The plaintiff was made
to sit on a bench in the
passage outside of the treatment room whilst Ntanga stood in the
passage. The plaintiff and Ntanga were
talking to one another whilst
Mshiya received treatment. According to the plaintiff there were two
cleaners in the facility as
well as warder Kama who was on duty at
the gate. Nurse Mama and Mshiya were alone in the treatment room.
The plaintiff also
testified that he was at some stage taken back to the single cells
section whilst Mshiya was undergoing treatment.
Upon arriving there
they met a warder Mthathi who said that they must return to the
hospital, which they did. The plaintiff was
again made to sit on a
bench in the passage outside of the treatment room. Warder Mthathi
went into one of the offices nearby.
At a certain stage
Mshiya came out of the treatment room and, according to the
plaintiff, went into the office where warder Mthathi
was present.
The plaintiff had his back turned towards that office. Whilst
sitting there he felt someone touch his face and when
he turned to
look up he saw Mshiya and that he had a blade in his hand. He put
his hand up to his face and when he drew it away
saw blood on his
hand. Warder Ntanga grabbed hold of Mshiya and the plaintiff fled
into the treatment room where the nurse expressed
shock at the wound
to his face. According to the plaintiff when he looked back out of
the room he saw the warders, now including
warder Mthathi,
assaulting Mshiya.
The plaintiff was
thereafter treated for the wound to his face, a 17 cm long slash
from his left temporal region down to his jaw
line.
The plaintiff also led
the evidence of Nurse Mama, the nurse who had treated Mshiya on the
day in question. At the time of the
incident she was employed as a
nurse at the St. Albans Prison hospital. She has since been
transferred to the East London Prison.
She confirmed that
Mshiya had been brought to the hospital section by warder Ntanga.
She did not see whether the plaintiff was
in the company of warder
Mthathi. She only saw warder Mthathi after the attack on the
plaintiff. According to her it is standard
procedure for a warder to
be present in the treatment room when a prisoner is receiving
treatment. This is so as to ensure the
safety of the nursing staff.
On this occasion there was no warder present.
She explained that the
wound to Mshiya’s head required suturing. To do this she
needed to shave off some of his hair. Mshiya
was apparently angered
by this because he did not want his dreadlocks removed. After
explaining to him the need to do so she
shaved his hair using a
surgical scalpel blade. The blade was kept on an instrument tray in
front of her and very close to the
prisoner. After using the scalpel
blade she replaced it on the tray. She then proceeded to treat the
wound, presumably by suturing
it. She was not yet finished with the
treatment when Mshiya stood up and left the treatment room. She
called out to him but he
ignored her. As he left the treatment room
he attacked the plaintiff who was outside the room.
It was put to the
plaintiff in cross-examination that he and Mshiya were at all times
accompanied by two warders, namely Ntanga
and Mthathi. It was also
put that the reason why the plaintiff had been taken to the hospital
was because of a procedural requirement
that an inmate could only be
admitted to the single cells after a medical examination had been
conducted. Certain aspects of
the plaintiff’s description of
the sequence of events immediately prior to the attack were also
placed in issue. Nothing
in my view however turns on this. No
evidence was led to contradict the version of events presented by
the plaintiff.
The undisputed facts
establish that Mshiya was treated by Nurse Mama without there being
a prison warder present to guard the
prisoner whilst under
treatment. The facts also establish, on the probabilities, that the
surgical blade used by Mshiya to attack
the plaintiff was acquired
by him during the treatment he received. It will be recalled that
immediately after the fight both
plaintiff and Mshiya were searched
and no weapons were found in Mshiya’s possession. On the
evidence presented the plaintiff
was not undergoing any examination
such as regulations may have required as a precursor to confinement
in a single cell and that
he was, at the time of the attack, in the
passage immediately outside of the treatment room.
The question that falls
to be answered is whether these facts establish negligence on the
part of the defendant’s employees.
The approach to this
question has recently been succinctly stated by Nugent, JA in
Minister of Safety & Security v Van Duivenboden
2002(6)
SA 431 (SCA) at paragraph 12, in the following terms:
“
Negligence,
as it is understood in our law, is not inherently unlawful – it
is unlawful, and thus actionable, only if it occurs
in circumstances
that the law recognises as making it unlawful. Where the negligence
manifests itself in a positive act that causes
physical harm it is
presumed to be unlawful, but that is not so in the case of a
negligent omission. A negligent omission is unlawful
only if it
occurs in circumstances that the law regards as sufficient to give
rise to a legal duty to avoid negligently causing
harm. It is
important to keep that concept quite separate from the concept of
fault. Where the law recognises the existence of
a legal duty it does
not follow that an omission will necessarily attract liability –
it will attract liability only if the
omission was also culpable as
determined by the application of the separate test that has
consistently been applied by this court
in
Kruger
v Coetzee
,
namely whether a reasonable person in the position of the defendant
would not only have foreseen the harm but would also have
acted to
avert it.”
(Footnotes omitted)
In this instance the
defendant has conceded that it is under a legal duty to ensure the
safe custody of the plaintiff. It is accordingly
necessary only to
determine whether the harm that eventuated in the form of the attack
upon the plaintiff by Mshiya was reasonably
foreseeable and whether,
in the circumstances, the defendant’s employees had taken
reasonable measures to avert such foreseeable
harm.
In
McIntosh v
Premier, Kwazulu Natal & Another
2008(6) SA 1 (SCA) the
following was said at paragraph 12:
“
As
is apparent from the much quoted dictum of Holmes, JA in
Kruger
v Coetzee
1966(2)
SA 428 (A) at 430 E – F, the issue of negligence itself
involves a two-fold enquiry. The first is: was the harm reasonably
foreseeable? The second is: would the
diligens
paterfamilias
take
reasonable steps to guard against such occurrence and did the
defendant fail to take those steps? The answer to the second
enquiry
is frequently expressed in terms of a duty. The foreseeability
requirement is more often than not assumed and the enquiry
is said to
be simply whether the defendant had a duty to take one or other step,
such as drive in a particular way or perform some
or other positive
act, and, if so, whether the failure on the part of the defendant to
do so amounted to a breach of that duty.”
In
Mukheiber v Raath
& Another
1999(3) SA 1065 (SCA) the well known test
formulated in
Kruger v Coetzee
1966(2) SA 428 (A), was
reformulated (at 1077 E – F) in the following terms:
“
For
the purposes of liability
culpa
arises if –
A reasonable person in
the position of the defendant –
would have foreseen harm
of the general kind that actually occurred;
(ii) would have foreseen
the general kind of causal sequence by which that harm occurred;
(iii) would have taken
steps to guard against it, and
The defendant failed to
take those steps.”
The approach to
determining foreseeability of harm involves a careful appraisal of
the particular facts and circumstances of the
matter, to determine
whether having regard to those circumstances a reasonable person in
the position of the defendant would
have foreseen the potential for
harm.
Joffe & Company Ltd v Hoskins and Another
;
Jolfe
& Company Ltd v Banamour N.O and Another
1941 (AD) 431 at
451.
It is not necessary that
the plaintiff should establish that the manner in which the harm
occurred ought to have been foreseen
nor even that the degree or
extent of the harm caused be foreseen.
Kruger v Van Der Merwe
1966(2) SA 266 (A) at 272 F.
Mr
Potgieter
, who
appeared for the defendant, argued that the attack on the plaintiff
was not reasonably foreseeable and that the plaintiff’s
claim
should be dismissed on this basis. In support of these submissions
Mr
Potgieter
argued that the fight that had occurred between
the plaintiff and Mshiya earlier that morning was over and that the
two prisoners
had been in company together from when they were taken
from the communal cell to the single cell facility and thereafter to
the
hospital. At no stage had it appeared that either party wanted
to continue the fight. This the plaintiff had conceded. It was
therefore submitted that the warders had no reason to believe that
Mshiya would launch any attack on the plaintiff.
These submissions lose
sight of the following facts. It is common cause that the warders
responded to the fight between the plaintiff
and Mshiya by taking
two important actions. The first was to strip-search both the
plaintiff and Mshiya to ensure that neither
was in possession of a
weapon. The clear purpose of so doing was to ensure that there was
no risk that either of the two of them
could, should an altercation
occur or continue, inflict serious harm on the other. The second
action involved taking both the
plaintiff and Mshiya to the single
cell facility so that they could be detained there in single holding
cells. This action necessarily
implies that it was considered
necessary to separate the plaintiff and Mshiya in a secure holding
facility so as to prevent any
further violence between them and to
ensure their individual safe custody.
In this regard the
provisions of
section 30
of the
Correctional Services Act, 111 of
1998
, which provides for the segregation of prisoners, is of
relevance since it reflects both the circumstances within which
segregation
may be applied and it’s particular purpose. The
section provides that:
“
(1)
Segregation of an inmate for a period of time, which may be for part
of or the whole day and which may include detention in
a single cell,
other than normal accommodation in a single cell as contemplated in
section 7(2)(e)
, is permissible –
(a) ...
(d) when an inmate
displays violence or is threatened with violence.
(8) Segregation must be
for the minimum period, and place the minimum restrictions on the
inmate, compatible with the purpose for
which the inmate is being
segregated.
(9) Except insofar as it
may be necessary in terms of subsection (1)(b) segregation may never
be ordered as a form of punishment
or disciplinary measure.”
The Act clearly
contemplates the necessity for the application of segregation of
persons in circumstances where violence has erupted
between
prisoners or where there is a threat of violence. This, since it is
not for the purposes of punishment, must necessarily
be for the
purpose of the prevention of further harm. The utilisation of the
power to segregate must flow from an acceptance
that there is a
reasonable risk of further violence and therefore the risk of harm
occurring to the prisoner or prisoners concerned.
If, as it was suggested
in argument, the mere fact that the fight was over indicated that
the likelihood of further violence was
not foreseeable, then there
would be no reason to place either the plaintiff or Mshiya in single
cells. In my view the mere fact
that the plaintiff and Mshiya were
to be placed in single cells must mean that the warders on duty
foresaw that there was a risk
of further violence between the
individuals and accordingly a risk of harm in the event that they
were not segregated.
Common sense too
suggests that where a violent altercation breaks out between two
prisoners, even where it is stopped by warders,
that there is a risk
of further violence for as long as those prisoners remain in one
another’s presence, at least in the
immediate aftermath of the
conflict. Violence between prisoners is not an uncommon phenomenon.
Prison security procedures involve
regular searches to ensure that
contraband and dangerous weapons are not secreted away by prisoners.
This is to secure both the
safety of warders and other staff as well
as other inmates. It was for the purpose of segregating the
prisoners in a secure facility
which could ensure their respective
safe custody that they were to be removed to the single cells. That
the prison authorities
intended to ensure the segregation of
plaintiff and Mshiya however does not assist the defendant since
they were in fact not
segregated.
Instead of being
segregated by being placed in the single cells both plaintiff and
Mshiya were taken to the hospital section.
There too they were not
kept in the segregation facility available and, furthermore, Mshiya
was treated in circumstances plainly
contrary to established
security procedures.
It requires no great
stretch of the imagination to accept that the close guarding and
surveillance of a prisoner whilst he is
undergoing medical treatment
is necessary to ensure both the safety of medical personnel and to
prevent the prisoner from acquiring
goods that may serve as weapons.
A medical facility where a prisoner is treated for wounds has within
it a number of items, including
surgical equipment, which may serve
as a dangerous weapon.
In this instance, Nurse
Mama was left unaccompanied. She used a surgical blade to shave
Mshiya’s hair. The tray was within
easy reach of Mshiya. These
facts establish, in my view, that the defendant’s employees
were negligent in at least this
respect, namely that they failed to
take adequate measures, apparently contrary to policy, to ensure
that Mshiya could not arm
himself with a dangerous weapon whilst
undergoing medical treatment in the hospital facility.
On the undisputed
evidence the plaintiff and Mshiya were not kept separated. Although
the plaintiff was kept in the passage whilst
Mshiya was being
treated this, it appears, was immediately outside of the treatment
room. Upon leaving the treatment room Mshiya
would of necessity pass
in close proximity to the plaintiff. The hospital section does have
a facility in which prisoners can
be held whilst awaiting treatment.
This was not used. It was common cause that warder Kama was present
and on duty and, it appears
from the evidence, he had control of
access to and egress from the hospital facility. There was therefore
undoubtedly a readily
available means to ensure that the plaintiff
and Mshiya were indeed kept separated. The facts establish that
there were two warders,
apart from warder Kama, present at the
facility at the time of the attack on the plaintiff. Whether Mthathi
came to be there
in the manner described by the plaintiff or whether
he had in fact accompanied Ntanga in bringing the plaintiff and
Mshiya to
the hospital initially, is of no moment. The fact remains
that he was present immediately prior to the attack and therefore
that
the defendant possessed the necessary means to ensure that the
plaintiff and Mshiya were properly secured. The failure to keep
the
plaintiff properly secured and properly separated from Mshiya whilst
in the hospital facility too is an omission which may
constitute a
negligent breach of the duty of care.
I am satisfied that it
was indeed reasonably foreseeable that in the absence of effective
segregation of the prisoners, Mshiya
would, if presented with the
opportunity, respond to or retaliate to the attack upon him by the
plaintiff and that there was
indeed a reasonably foreseeable risk
that physical harm of the general kind actually suffered by the
plaintiff would be caused
to the plaintiff if Mshiya was afforded
that opportunity.
In
Minister of Safety
& Security v Van Duivenboden
2002(6) SA 431 (SCA) the court
said, in respect of the second element of the test for negligence,
namely whether a
diligens paterfamilias
in the position of
the defendant would take reasonable steps to guard against the
consequence of harm, that the answer (at 448
F – G) to:
“
That
enquiry offers considerable scope for ensuring that undue demands are
not placed upon public authorities and functionaries
for the extent
of the resources and the manner in which they have ordered their
priorities will necessarily be taken into account
in determining
whether they acted reasonably.”
In this instance I have
already indicated that the prison officials had at their disposal a
facility which could readily and easily
have been utilised in order
to keep the plaintiff and Mshiya segregated whilst Mshiya was
undergoing medical treatment. Furthermore
the prison officials had
at their disposal sufficient resources, it being common cause that
there were at least two warders present
at the time immediately
prior to the attack on the plaintiff, to ensure that Mshiya was
properly guarded and kept under surveillance
during the course of
the treatment.
The failure to properly
segregate the prisoners and to ensure that both the plaintiff and
Mshiya were sufficiently monitored and
guarded until such time as
they could be securely segregated constitutes a breach of the duty
of care that the defendant owed
to the plaintiff, namely the duty to
ensure his safe custody in circumstances where violence had broken
out between him and a
fellow prisoner. This failure resulted in the
plaintiff suffering physical harm in consequence of the violent
attack upon him
by his fellow prisoner.
It accordingly follows
that the plaintiff has succeeded in establishing that the defendant
is liable to him in damages for the
breach of the duty of care owed
to him.
A final aspect concerns
the question of costs. Mr
Niekerk
, who appeared for the
plaintiff, argued that by reason of the nature of the injuries and
the likely cost of future medical treatment
that it is likely that
the plaintiff in due course will establish a quantum of damages
which would entitle him to costs on the
scale allowed in the High
Court. For this reason I should at this stage of the proceedings
order the defendant to pay the plaintiff’s
costs.
The evidence regarding
the plaintiff’s losses is not before me. All that is apparent
from the pleadings is that the plaintiff
claims an amount of
R50,000.00 for future medical treatment and R200,000.00 by way of
general damages.
I find myself in a
position similar to that in
Van Der Spuy v Minister of Safety and
Security
2004(2) SA 463 (SE). In that matter too a separation of
issues had been ordered. The plaintiff had suffered a gunshot wound
to
the arm during the course of a prison escape. Leach, J (as he
then was) said the following at 477 I:
“
In
casu
,
although there is no detailed medical evidence before me, I know that
the plaintiff suffered a gunshot wound of the arm. It is
certainly
premature for me to comment on the advisability of his actions in
suing in the High Court, but his injuries do not appear
to me to be
so severe that he will undoubtedly recover costs on the High Court
scale notwithstanding the amount of his claim being
far in excess of
the upper jurisdiction of the magistrate’s court.”
These remarks are
apposite in this matter. I too consider that it would be unfair at
this stage of proceedings to saddle the defendant
with a costs order
on the scale allowed in the High Court when the quantum of the
plaintiff’s loss may yet fall within
the jurisdiction of the
Magistrate’s Court.
I accordingly make the
following order:
The defendant is
declared to be liable to the plaintiff for whatever damages he may
have suffered arising from the bodily injuries
he sustained in the
assault perpetrated on him by a fellow prisoner at the St. Albans
Prison Hospital on 16 May 2007, which is
the subject of these
proceedings.
Costs are reserved.
__________________________
GG GOOSEN
JUDGE OF THE HIGH
COURT
APPEARANCE
:
FOR THE PLAINTIFF
:
Mr D Niekerk, instructed by
Egon A Oswald Attorneys
FOR THE DEFENDANT
:
Mr L Potgieter, instructed by
The State Attorney