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[2016] ZAECPEHC 67
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Meyer v Minister of Correctional Services (1299/2014) [2016] ZAECPEHC 67 (4 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case No. 1299/2014
Date Heard: 6,7
September 2016,
Date Delivered: 4
October 2016
In
the matter between:
Freddie
Meyer
Plaintiff
and
The
Minster of Correctional Services
Defendant
JUDGMENT
MALUSI AJ:
[1]
The plaintiff instituted an action for damages against the defendant
arising from his assault by one Lubabalo Singqotho in St
Albans
prison. The action is defended.
[2]
During the trial both parties applied for a separation of merits and
quantum. I granted the order.
[3]
Both plaintiff and Singqotho were sentenced prisoners serving terms
of imprisonment. Singqotho gave evidence that he had overhead
a
cellmate relate where the latter had concealed a piece of metal after
a fight. He picked up the metal at the prison courtyard.
Singqotho
wrapped the metal and secreted it in his anus. He concealed the metal
alternately in a locker in his cell or in his anus.
He later
sharpened the metal.
[4]
On 30 November 2013 Singqotho’s cell was opened by a warder for
the prisoners to go to the dining hall to have breakfast.
Shortly
after his arrival at the dining hall he went back to his cell due to
loss of appetite. He retrieved the metal from his
locker and left the
cell.
[5]
The plaintiff was milling in the passage next to his cell waiting for
a warder to open the cell. Singqotho pounced on him and
stabbed him
several times. The plaintiff suffered multiple lacerations on his
left hand and his head. There were no warders in
the passage area
where the plaintiff was stabbed.
[6]
The plaintiff corroborated Singqotho’s evidence with regard to
how he was stabbed and the absence of warders. He further
confirmed
that when prisoners came back from the dining hall they walked about
on their own without any warder escorting them.
[7]
Horrace Jordaan is a warder with almost 37 years in the employ of the
defendant. He gave evidence about procedures warders follow
in
conducting searches of the cells and the prisoners. He further
outlined the procedure followed when prisoners leave cells for
the
dining hall and back to cells. He testified that it was impossible
for a prisoner to leave the dining hall alone to the cells.
At
the time of the attack on plaintiff he was in an office assisting
another prisoner.
[8]
The plaintiff alleged the defendant was under a statutory legal duty
to protect him from the harm he suffered; the harm was
foreseeable;
the defendant breached the aforesaid duty by failing to take
reasonable steps to prevent such harm from occurring.
Alternatively,
the defendant acted unlawfully and negligently by failing to prevent
a prisoner’s possession of a knife.
[9]
The plaintiff asserted as a result of the defendant’s statutory
breach, alternatively negligent conduct he suffered general
damages
in the sum of R500 000,00.
[10]
In its plea, the defendant admitted the assault but disputed the
extent of the injuries. The defendant denied any employee
had
breached any statutory duty or had acted negligently in the respects
alleged or at all.
[11]
Section 4 (2) (a) of the Correctional Services Act 11 of 1998 (“the
Act”) provides that:
“
The
department must take steps as are necessary to ensure the safe
custody of every inmate and to maintain security and good order
in
any every correctional centre
”.
[12]
Section 26 of the Act makes provision for safe custody and states:
“
(1)
The right of every inmate to personal integrity and privacy is
subject to the limitations reasonably necessary
to ensure the
security of the community, the safety of correctional officials and
the safe custody of all inmates
.
(2)
In order to achieve these objectives referred to in subsection (1)
and subject to the limitations outlined in sections 27 to
35 a
correctional official may-
(a)
search the person of an inmate, his or her property and the place
where he or she is in custody and seize any object or substance
which
may pose a threat to the security of the correctional centre or any
person, or which could be used as evidence in a criminal
trial or
disciplinary proceedings.
”
[13]
The defendant is empowered by section 134 of the Act to make
regulations as to the safe custody of inmates and the maintenance
of
good order, discipline and security in correctional centres. The
regulations were published in the Regulations Gazette on 30
July
2004. Regulations 15 and 16 deal with safe custody and searches
respectively.
[14]
Mr Beyleveld, who appeared for the defendant, put it to Singqotho
that the inmates sharpen all sorts of things. Once sharpened
“most
inmates” secrete these objects in their anuses.
14]
Jordan later testified on procedure adopted in conducting searches in
cells. He alleged two members would be in possession of
metal
detectors. Both Singqotho and the plaintiff disputed the use of metal
detectors.
[15]
I have to agree with Mr Oswarld, who appeared on behalf of the
plaintiff, that Jordaan testified about what procedure entailed
and
not what practically transpired in the prison. It appears the warders
are overstretched. They are unable to search every cell
daily due to
manpower constraints, according to Jordaan. It is foreseeable that
this failure to conduct daily or frequent searches
will result in
prisoners being harmed.
[16]
This conduct by the warders is contrary to standing orders issued in
accordance with regulation 16. The reason for searches
is to curtail
attacks by prisoners. If the searches are not conducted daily by
sufficient numbers of warders then it is wrongful
that other
prisoners will be harmed, due to a lack of sufficient warders.
[17]
Both Singqotho and plaintiff testified that prisoners leave the
dining hall and walk on their own towards the cells. Jordaan
testified that it was “impossible” for this to happen.
Again Jordaan gave evidence of an obviously safe procedure that
he
alleged was followed in the prison.
[18]
It bears repeating that Jordaan has no personal knowledge of how both
Singqotho and the plaintiff left the dining hall on the
morning of
the incident. There is no evidence from any warder who was in the
vicinity of the passage when the attack took place
and witnessed the
assault. If a warder always escorts the prisoners back to the cell,
then the escort warder would have seen the
attack and testified in
the trial. The irresistible inference from absence of such a witness
is that the prisoners were on their
own.
[19]
The conduct of allowing prisoners “most” of whom are in
possession of sharp instruments to mingle without escort
in the
vicinity is, in my view, negligent. It is foreseeable, preventable
and the defendant failed to take the reasonable steps
to guard
against it.
[20]
I am satisfied that causation has been established. The attack on the
plaintiff would probably not have occurred “but-for”
the
inaction of the defendant. If Singqotho had been more thoroughly,
regularly searched the knife may well have been covered.
[21]
The plaintiff was a satisfactory witness. I accept his evidence as
truthful. Where he corroborates Singqotho I accept their
evidence.
Singqotho was a poor witness. Some aspects of his testimony appear
untruthful.
[22]
Jordaan as a long standing employee of defendant is expected to have
some bias. The difficulty is that his bias is so blatant.
This
affects his credibility as a witness. I do not accept his evidence as
far as it is intended to explain the morning of the
assault. The
probabilities heavily favour the plaintiff’s version.
[23]
In the circumstances and for the above reasons it is ordered that:
i.
The defendant is liable to compensate the plaintiff for such damages
as the plaintiff
may prove he had suffered resulting from the assault
that occurred on 30 November 2013.
ii.
The defendant is to pay the
plaintiff’s costs of suit
.
______________________________
T.
MALUSI
ACTING
JUDGE OF THE HIGH COURT
On
behalf of the plaintiff:
Mr Oswald
Egon
Oswald Attorneys
Port
Elizabeth
On
behalf of the first and defendant: Adv A
Beyleveld SC
Instructed
by:
State Attorney
Port
Elizabeth