About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2017
>>
[2017] ZAECPEHC 46
|
|
Spence v Minister of Justice and Correctional Services (3071/2013) [2017] ZAECPEHC 46 (22 September 2017)
Links to summary
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
CASE NO: 3071/2013
Date heard: 7
September 2017
Date
delivered: 22 September 2017
In
the matter between
MALCOLM
SPENCE
Plaintiff
And
MINISTER
OF JUSTICE AND CORRECTIONAL SERVICES
Defendant
JUDGMENT
GOOSEN,
J.
[1]
The
plaintiff claims damages arising from an assault perpetrated upon him
by a fellow inmate at the St. Albans Maximum Security
Correction
Centre. At the commencement of the trial the plaintiff applied for an
order separating the determination of the liability
of the defendant
from the quantum of his claim in terms of Rule 33 (4). I granted the
order and ordered that the costs of the application
be costs in the
cause.
[2]
The
plaintiff’s claim is founded upon the alleged negligent breach
of a duty of care owed to the plaintiff by the defendant’s
servants. It is alleged that the assault, which consisted of the
plaintiff being slashed across his face with a surgical blade,
was
caused by the negligence of the defendant’s servants in that:
4.1
The Defendant’s employees failed to take adequate measures to
prevent the fellow inmate from arming himself with
the surgical
blade.
4.2
The Defendant’s employees failed to ensure the safety of the
plaintiff, whilst the latter was locked in the passage
in B Section
at St Albans Maximum Correctional Centre, as they reasonably could
and should have done.
[3]
I
should mention that the latter allegation as formulated in the
particulars of claim was amended at the close of the plaintiff’s
case to bring it in line with the evidence tendered in regard to the
place where the assault occurred.
[4]
In
paragraph 6 of the plaintiff’s particulars of claim it is
alleged that:
The
Defendant’s employees had a duty of care towards the Plaintiff
to:
6.1
Ensure the plaintiff’s safe custody; and
6.2
Ensure the physical and psychological integrity of the plaintiff.
[5]
The
defendant denied the alleged negligence, set out above, and further
pleaded in relation thereto that:
4.2 The defendant
specifically states that although reasonable steps are taken from
time to time to search cells, individuals
and the premises in
general, by the very nature of the institution of a correctional
facility, contraband will from time to time
end up in the hands of
detainees.
[6]
In
relation to the duty of care alleged by the plaintiff the defendant
pleaded as follows:
The defendant states that given
the nature of the facility, the nature of detainees conduct from time
to time, the culture in existence
inside the facility, the conduct of
the Plaintiff interacting with fellow detainees, the layout of the
facility and the availability
of manpower, all reasonable steps had
been taken in order to comply with its duty of care.
[7]
The
defendant admitted that on 10 April 2012 the plaintiff was assaulted
by a fellow prisoner who slashed him across the face with
a surgical
blade. On the pleadings therefore the issue to be determined at trial
was whether there had been a negligent breach
of the duty of care
which the defendant admitted that it owed to the plaintiff.
[8]
The
plaintiff gave evidence at trial and also presented the evidence of
Spyres, a Department of Correctional Services official who
conducted
an investigation into the incident which occurred on 10 April 2012.
The defendant closed its case without calling any
witnesses.
[9]
The
plaintiff’s description of events on 10 April 2012 was not
placed in dispute. The plaintiff stated that he had been convicted
of
rape and sexual assault involving a child and was sentenced to
undergo imprisonment. Given the nature of the offence for which
he
was convicted and the period of his incarceration he was incarcerated
at the St Albans Maximum Correctional Centre. He explained
that
persons convicted of sexual offences, particularly offences involving
children, were often subjected to assaults or threats
of assaults
perpetrated upon them by other inmates held in the Maximum prison.
Such prisoners were accordingly kept segregated
from the general body
of inmates. He stated that he had also suffered from a heart
condition and hypertension and on this account
also was kept
segregated along with other inmates who suffered from ill health. He
was therefore kept in the FC4 cell which is
part of the B section of
the facility. The threat of assault was a constant threat and
accordingly the inmates in FC 4 cell were
removed from the cell to
the exercise area and to the dining facility under escort and
separately from other inmates.
[10]
On
10 April 2012 at about 3.00pm he along with the other inmates in the
FC 4 cell was taken out of the cell and escorted along a
passage in
the B section to the dining hall. The entrance to the dining hall is
controlled by a locked gate opened from the inside
to permit access
to the dining hall. Once they were in the dining hall they collected
their food for the evening meal. He stated
that this consisted of a
so-called “double meal” which meant that they were served
additional bread on account of the
fact that the prison was
short-staffed. Once they had collected their food they were to be
returned to their cell.
[11]
The
plaintiff said that he collected two trays of food, one for himself
and one for a friend who was still in the cell. Once they
had
collected their food the inmates were made to wait at the gate which
allowed access to the passage leading back to their cell.
He stated
that there were only three prison warders in the dining area. The
prison warder, who was in control of the gate, used
a two-way radio
to make contact with the warder who was in control of the gate at the
end of the passage which would enable the
inmates to be admitted to
the FC 4 cell section. The prison warder asked Vawa, the warder at
the end gate, if the passage was clear.
The gate leading into the
passage was then unlocked and the inmates were allowed to enter the
passage. He said that they were not
accompanied by a prison official,
as usually occurred, because there was a shortage of prison
officials. He made his way along
the passage to the gate at the other
end. When he got there the gate was still locked and there was no
prison official to be seen.
He therefore waited at the gate. No
prison official arrived. Whilst waiting at the gate he noticed that
the passage was filling
up with other inmates who had been admitted
to the passage from the dining hall. This had not occurred before and
he immediately
became apprehensive. As the passage filled up he
noticed an inmate between him and the gate. He had by then stepped
back from the
gate and he noticed this inmate pacing backwards and
forwards in front of him.
[12]
He
said that he felt a blow to the side of his face on the left side.
When he turned towards his fellow inmates they stepped back
from him
in apparent shock. It was then that he noticed blood and that he was
bleeding profusely. There was still no prison warder
at the gate. He
decided to make his way back along the passage in the direction of
the gate at the dining hall entrance. Someone
gave him a rag with
which to stop the bleeding. As he made his way through the crowded
passage the prisoner who had been pacing
in front of him walked
alongside him. He noticed that he had a blade in his hand and that
this prisoner taunted him and was making
lunging movements towards
him. When he got to the gate at the dining hall the attacker was
still alongside him and remained there.
The plaintiff managed to
alert a prison warder who opened the gate and came to his assistance.
He was then led back down the passage
to the end of the passage by
the prison official and ultimately taken for medical treatment. His
attacker had dropped the blade
on the floor before he was led away by
two warders. The plaintiff received medical treatment for a 17 cm
gash which ran from the
left temporal region to the jaw line on the
left side of his face.
[13]
As
already indicated the plaintiff’s description of what
transpired was not placed in dispute during cross-examination.
Instead
the cross-examination was directed towards the location of
the place where the attack occurred and the question as to whether
the
attack was provoked in any manner. It was also directed towards
steps that the prison officials take from time to time to ensure
that
the inmates do not have in their possession weapons or contraband.
[14]
In
regard to the place where the attack occurred the plaintiff indicated
that it occurred in the passage located in the B section
of the
prison leading from the dining hall back towards the FC 4 cell areas.
He conceded readily that the description in the particulars
of claim
was incorrect inasmuch as it referred to the passage between the B
and D sections of the prison. It was, in consequence
of this, that
the amendment was sought to the particulars of claim.
[15]
The
plaintiff stated that, insofar as he was concerned, the attack was
entirely unprovoked and that nothing had given rise to it.
He
conceded, therefore, that the prison officials could not have
anticipated the particular attack upon him by the perpetrator.
However, he indicated that the inmates held in FC 4 cell were kept
segregated from other inmates precisely because of the threat
of
assaults being perpetrated upon them by other inmates held in the
Maximum Prison.
[16]
The
plaintiff accepted that the prison was short staffed on the occasion
of the attack and that it was in consequence of this that
a so-called
‘double meal” was served and that they were not escorted
in the passage. He explained, however, that on
previous occasions
when that had occurred, the gate at the end of the passage was kept
locked so as not to admit any other inmates
into the passage when the
FC 4 inmates were in the passage. He could not say why this had not
been done. When he had been admitted
to the passage from the dining
hall he expected to have the gate at the other end of the passage
opened by a prison official so
that he and his fellow inmates could
then enter the cells. The fact that the gate was not opened and that
other prisoners were
admitted to the passage from the dining hall had
resulted in the FC 4 prisoners mingling with the other inmates. It
was in these
circumstances that the assault had occurred.
[17]
In
regard to the searches conducted by prison officials, the plaintiff
conceded that searches were conducted both on prisoners and
their
cells. He accepted that it was also possible that, notwithstanding
searches being conducted, contraband would nevertheless
be possessed
by prisoners and that such contraband could include a dangerous
weapon such as the surgical blade that the perpetrator
had used in
his attack upon him. He expressed the view that regular and more
rigorous searches, including searches involving the
use of scanning
devices, might prevent the possession of such unlawful weapons.
[18]
As
indicated the plaintiff also presented the evidence of Spyres. It is
in my view not necessary to dwell upon this evidence. He
explained
that he was appointed as the investigating officer to investigate the
incident that occurred on 10 April 2012, and in
this regard presented
an investigation report. Included in that report was a statement
apparently made by the perpetrator of the
assault in which he
admitted the assault upon the plaintiff and furthermore claimed to
have been in possession of the weapon since
he had been transferred
to the St Albans Maximum Prison. The investigation, such as it was,
did not cast any light on the circumstances
giving rise to the
assault upon the plaintiff since it does not appear that any prison
officials were interviewed pursuant to the
investigation. All that
the evidence of Spyres established is that an assault was perpetrated
on the plaintiff by a fellow inmate
in the circumstances described by
him.
[19]
Mr.
Oswald
,
on behalf of the plaintiff, argued that the evidence establishes that
the defendant’s servants failed to take adequate steps
to
secure the plaintiff from assault by a fellow inmate. It was argued
that the case was on all fours with
Jaftha
v Minister of Correctional Services
[2012] 2 All SA 286
(ECP). In that matter a fellow detainee had
slashed the plaintiff across his face with a surgical blade after
receiving treatment
in the prison hospital. It was found that the
defendant was liable on the basis that prison official had failed to
take steps to
segregate the prisoners following a prior altercation
between them.
[20]
Mr.
Jooste
,
on behalf of the defendant, submitted that the facts in
Jaftha
are distinguishable. It was submitted that in that matter the
foreseeability of harm had been triggered by the prior assault
whereas
no such trigger arose in the present matter.
[21]
Mr.
Jooste
argued that the defendant did not have a case to meet. This was so,
so the argument went, because on the plaintiff’s own
evidence a
similar procedure had been effectively used on previous occasions
when the Department of Correctional Services was short
of personnel;
that searches are regularly carried out to confiscate weapons and
other contraband items; and it was not possible
to guarantee that no
weapons or other items could be retained in the possession of
prisoners. It was furthermore argued that the
attack was not
foreshadowed by threats as it had been unprovoked. In the
circumstances, so it was argued, the attack on the plaintiff
was not
reasonably foreseeable. The defendant’s employees could not
have anticipated the attack and therefore could not have
taken steps
to avoid it.
[22]
The
argument, however, does not address the fact that the prison
officials, on the uncontested evidence of the plaintiff, had taken
steps to keep the plaintiff and his cell inmates segregated from the
general body of maximum security inmates. The steps included
holding
the plaintiff in a separate cell, the so-called security cell, and
ensuring that prisoners were escorted to and from the
dining hall
separate from other inmates. It also does not address the evidence of
the plaintiff, which was to the effect that the
prisoners held in the
security cell were frequently subjected to abuse and threats of
assaults by other inmates. It was the plaintiff’s
evidence that
the prison officials had employed the mechanism of controlling entry
into the passage area from the dining hall to
ensure that those
prisoners did not mingle with other inmates. They were also taken to
and from the exercise yard, separately for
a similar reason.
[23]
These
measures pointed to an acceptance of risk associated with mingling
the security prisoners with the general body of inmates
and must, in
my view, indicate that the prison officials foresaw that the
possibility of harm would eventuate if they were not
segregated.
Certainly no evidence was led to contradict the evidence of the
plaintiff that they were kept segregated from the other
inmates for
this reason.
[24]
Whilst
it is so that the facts in
Jaftha
differ from the present matter the judgment nevertheless provides
guidance as to the foreseeability of harm in circumstances such
as
the present and the necessity to act in accordance with such
foresight.
[25]
It
is appropriate here to note the provisions of s 30 of the
Correctional Services Act, Act 111 of 1998 which 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)
…
(b)
…
(c)
…
(d)
when
an inmate displays violence or is threatened with violence.
(2)
..
(3)
...
(4)
..
(5)
..
(6)
..
(7)
..
(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.
[26]
As
was noted in
Jaftha
at par [27],
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.
(Emphasis
added)
[27]
The
measures contemplated by s 30 may vary from segregation in a single
cell to measures short of such isolation which may be appropriate
in
the particular circumstances.
[28]
We
know from the evidence of the plaintiff that the defendant’s
servants had taken steps to prevent the possible harm from
occurring.
On previous occasions, the security prisoners, including the
plaintiff, were escorted in the passage. When faced with
personnel
shortages the prisoners were allowed to enter the passage from the
dining hall and then admitted to their cell at the
other end before
other inmates were allowed to enter the passage. This mechanism had
been effectively employed previously.
[29]
On
this occasion the warder who opened the gate to allow access to the
passage did so after calling the other warder, Vawa, on the
radio,
presumably to ensure that he would be in a position to open the gate
at the other end. Instead, while the plaintiff and
the other FC 4
prisoners were confined in the passage other inmates were allowed to
enter the passage contrary to the procedure
previously employed. No
evidence was presented to explain why the method previously employed
to secure the FC 4 prisoners was not
employed on the present
occasion.
[30]
In
Mukheiber
v Raath and another
1999 (3) SA 1065
(SCA) at 1077E-F it was stated that:
For the purposes of liability
culpa
arises if
(a) A reasonable person in the
position of the defendant –
(i) 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
(b)
The defendant failed to take those steps.
[31]
In
this instance the facts and circumstances of the matter (cf.
Joffe
& Company Ltd v Hoskins and another; Joffe & Company Ltd v
Banamour N.O. and another
1941 A.D. 431
at 451) are such that a reasonable person in the
position of the defendant would have foreseen the possibility of harm
flowing
from an assault if the prisoners were not kept segregated. It
is not necessary that the defendant’s servants should have
foreseen that the assault would take the form of an attack with a
blade or other sharp instrument (
Kruger
v Van der Merwe
1966 (2) SA 266
(A) at 272F).
[32]
The
evidence also establishes that a reasonable person in the position of
the defendant would have foreseen the general kind of
causal sequence
by which the harm to the plaintiff occurred, namely that if the
inmates were not segregated an attack, such as
occurred, could result
upon one or more of the prisoners requiring segregation in order to
protect them from such assault.
[33]
This
brings me to the second leg of the enquiry. It was the plaintiff’s
case that a similar procedure had been followed on
previous occasions
without incident. The plaintiff conceded that regular searches of
prisoners and cells were conducted to remove
weapons and other
contraband. He conceded also that it would be impractical to conduct
body searches on inmates every time they
leave their cells. These
concessions were fairly made.
[34]
As
I understood Mr
Jooste’s
argument it was the concession, namely that preventive steps had been
taken, which put paid to any form of negligence on the part
of the
defendant’s servants.
[35]
I
disagree. As indicated above the alleged negligence of the defendant
was founded upon two grounds, namely the failure to prevent
the
plaintiff’s attacker from arming himself
and
the failure to ensure his safety whilst locked in the passage. The
plaintiff’s concession that searches were conducted and
his
further concession that it is very difficult to eliminate the
presence of weapons or contraband amongst prisoners does not
absolve
the defendant from explaining what steps were actually taken to
prevent the attacker from being in possession of a dangerous
weapon.
We know that he was in possession of such weapon. The defendant
pleaded that it had taken certain measures and that those
measures
could not have prevented the attack given,
inter
alia
,
the layout of the facility and the culture in the prison. No evidence
was led to contradict the plaintiff’s evidence that
the layout
was such that measures had previously been successfully employed to
keep the two groups of prisoners separated.
[36]
Defendant’s
plea in respect of the possession of dangerous weapons by prisoners
took the form of a confession and avoidance.
Yet no evidence was
presented to indicate what measures were taken and that such measures
as were taken were reasonable in the
circumstances.
[37]
Furthermore,
in regard to the second ground of negligence the plaintiff’s
evidence was that in this instance the FC4 prisoners
were not
escorted in the passage as usually occurred and that they were not
released from the passage before other inmates were
admitted as it
been done on previous occasions.
[38]
In
Minister
of Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) at 448F/G it was stated that the enquiry into
what steps a reasonable person would take to avoid harm,
‘…
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.’
[39]
In
this instance we do not know what measures the defendant took to
ensure that maximum security prisoners are unable to arm themselves
with weapons such as that which was used. Even if it is accepted, for
present purposes, that searching every prisoner every time
he is
removed from a cell and or employing metal detectors and other
scanners is beyond the resources of the defendant and that
such
measures as were employed were reasonable, we are still left with the
second ground, namely that the prisoners were not kept
segregated.
According to the evidence of the plaintiff this was as a result of
the failure to follow the segregation procedure
which had previously
been successfully employed. The plaintiff’s evidence that had
the prison official opened the gate at
the end of the passage the
prisoners would not have been confined in the passage was
unchallenged. It is therefore not in dispute
that the defendant could
have ensured that the FC 4 prisoners were escorted out of the passage
before the other inmates were admitted.
By failing to do so the
defendant’s servants negligently breached the duty of care owed
to the plaintiff.
[40]
As
indicated above the only issue was whether the defendant’s
servants had acted negligently. Accordingly, I am satisfied
that the
plaintiff has succeeded in establishing that the defendant is liable
to him in damages for the harm suffered by him in
consequence of the
defendant’s breach of its duty of care owed to.
[41]
I
therefore make the following order:
1.
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 maximum Prison on 10 April 2012;
2.
The
defendant is ordered to pay the costs.
G.
G. GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
For the Plaintiff
Mr.
E. A. Oswald
Egon
Oswald Attorneys
For
the Defendant
Adv.
P. E. Jooste
Instructed
by the State Attorney