Minister of Safety and Security and others v Craig and Others (572/08) [2009] ZASCA 97; [2010] 1 All SA 126 (SCA) ; 2011 (1) SACR 469 (SCA) (17 September 2009)

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[2009] ZASCA 97
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Minister of Safety and Security and others v Craig and Others (572/08) [2009] ZASCA 97; [2010] 1 All SA 126 (SCA) ; 2011 (1) SACR 469 (SCA) (17 September 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case no: 572/08
THE
MINISTER OF SAFETY AND SECURITY
First
Appellant
THE
CHARGE OFFICE COMMANDER OF THE
Second
Appellant
HAMMARSDALE
POLICE STATION
MUSAWAKHE
MORRIS MWANDLA
Third
Appellant
and
LORAINE
CRAIG
First
Respondent
LORAINE CRAIG NO
Second Respondent
LORAINE
CRAIG NO
Third
Respondent
LORAINE
CRAIG NO
Fourth
Respondent
________________________________________________________________
Neutral citation:
Minister
of Safety and Security and others v Loraine Craig
(572/08)
[2009] ZASCA 97
(17 September 2009)
CORAM:
Navsa,
Brand, Ponnan, Mlambo and Mhlantla JJA
HEARD:
27
August 2009
DELIVERED:
17
September 2009
CORRECTED:
SUMMARY: Delict -
wellbeing of arrested persons ─ duty of police officers discussed ─
examination by district surgeon prior
to detention at police station
─ cause of death delayed rupture of descending aorta ─ in
totality of circumstances police not
negligent.
________________________________________________________________
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
High
Court, Pietermaritzburg (Koen J sitting as court of first instance).
1. The appeal is upheld with costs,
such costs to include the costs of two counsel.
2. The order of the court below is set
aside and substituted as follows:
‘The
plaintiffs’ claims are dismissed with costs, such costs to include
the costs consequent upon the employment of two (2)
counsel.’
______________________________________________________________
JUDGMENT
______________________________________________________________
NAVSA JA (BRAND, PONNAN, MLAMBO and
MHLANTLA JJA concurring):
[1] At approximately 21h00 on Saturday
19 July 2003, 34 year-old Mr Andre Vincent Craig, who was
heavily under the influence
of alcohol, drove in a southerly
direction and into the face of oncoming traffic on the northbound
carriageway of the N3 national
freeway. He drove his Toyota motor
vehicle into the path of an oncoming BMW motor vehicle, with
disastrous consequences. The BMW
caught alight and two children
within that car burnt to death. Other passengers in the BMW were
seriously injured. The collision
occurred near Hammarsdale, in the
province of Kwa-Zulu Natal.
[2] Mr Craig survived the collision.
He was arrested at the scene by two members of the South African
Police Service. At approximately
21h40, another policeman, the third
appellant, Detective-Inspector Musawakhe Mwandla,
1
transported Mr Craig to Camperdown, to the rooms of the district
surgeon, Dr Richard Thompson, to have blood drawn for the

purpose of a blood-alcohol test.
[3] They arrived at Dr Thompson’s
rooms at approximately 23h50. Dr Thompson conducted an examination
and blood was drawn. Tests
later revealed that Mr Craig’s
blood-alcohol content was five times over the legal limit. The
official form completed by
Dr Thompson at that stage noted small cuts
and bruises on Mr Craig’s body, recorded that he had a painful
shoulder blade, but
stated that he was otherwise ‘well’.
[4] After the blood sample had been
taken, Inspector Mwandla transported Mr Craig to the Hammarsdale
police station as he had
received radio instructions that members of
the latter’s family were waiting there to attempt to secure his
release on bail.
[5] Mrs Craig’s mother, his wife
Loraine and her nephew, Mr Russell Everton, were all waiting at the
Hammarsdale police station.
After Mr Craig’s arrival the family
requested that he be released on bail, but this was refused.
Inspector Mwandla left the police
station shortly thereafter.
[6] Mr Craig’s family then urged the
police to allow them to take Mr Craig to hospital but this too
was refused. However,
the police, in order to appease them, summoned
paramedics to examine him. The paramedics arrived during the early
hours of Sunday
morning.
[7] There is a dispute about whether
Mr Craig allowed the paramedics to examine him. I interpose to state
that there are other material
disputes about: (a) the nature and
extent of the district surgeon’s examination of Mr Craig; (b)
whether he had given Inspector
Mwandla specific instructions
concerning further treatment or hospitalisation; (c) the nature of
the complaints made by family
members to the police concerning Mr
Craig’s condition and (d) whether Mr Craig was in obvious physical
discomfort at the police
station. These disputes will be addressed in
due course.
[8] According to Mrs Loraine Craig,
the paramedics conducted a most cursory examination of her husband
and then pronounced that
there was nothing wrong with him. According
to a paramedic and the police, Mr Craig was obstructive and refused
to be examined.
[9] A short while after the paramedics
had left the police station, Mr Craig’s family departed. At
approximately 03h45 that Sunday
morning, because Hammarsdale police
station had no holding facilities, Mr Craig was transported by the
police to the holding cells
at Mpumalanga Police Station. At
approximately 10h35 Mr Craig complained that he was feeling unwell.
[10] Inspector Mwandla was summoned
and instructed to take Mr Craig to Dr Thompson for
treatment. Acting on his own initiative
Inspector Mwandla instead
transported Mr Craig to Grey’s hospital. Shortly after his
arrival there, and despite the hospital
staff’s best efforts to
resuscitate him, Mr Craig died at approximately 13h45.
[11] The cause of death was diagnosed
as a delayed rupture of the descending aorta. Although not a frequent
occurrence, it is a
well-known result of high-impact collisions. It
is necessary to describe the relevant physiology and the nature of
this injury.
[12] The aorta is the main artery that
transports oxygenated blood from the heart to the rest of the body.
The descending thoracic
aorta ─ as the name suggests ─ is where
the aorta turns to supply blood to the thoracic wall and then the
abdomen and the lower
limbs. That part of the aorta is partially
fixed. The rest of the aorta and the heart are mobile and that is why
there is a predisposition
to rupture, particularly where a person is
involved in a high-impact collision. The victim’s body stops as a
result of the collision
but the heart, the ascending aorta and the
aortic arch continue to move. At the point where the descending aorta
begins it is relatively
immobile and has a propensity to tear. This
explains how the rupture occurred in the present case.
[13] Most of these ruptures are lethal
at the scene of the collision because the rupture is usually such
that the injured person
bleeds to death almost instantly. In rare
cases where this does not occur, victims experience what is referred
to as a contained
rupture, which consists of a blood clot within the
outer lining of the aorta. This has a fair amount of resistance, but
with the
passage of time and without surgical intervention, it
ultimately gives way and death ensues. Where there is a contained
rupture
there are pointers and tell-tale signs to assist in a
diagnosis.
[14] The first indicator is a
high-impact collision, which would alert a medical practitioner to
the need for x-rays. A clinical
examination would reveal either
unusually high or unusually low blood pressures. There will usually
be blood pressure differentials
between arms and legs. Rib fractures,
particularly of the first, second or third ribs, are usually
associated with this condition.
These fractures are indicative of
direct significant physical trauma best detected by x-rays. Such
fractures are usually associated
with a high degree of pain.
[15] In Mr Craig’s case the
post-mortem examination revealed such fractures. During the trial in
the court below there was a debate
about what could have caused the
fractures, including a suggestion that they might have been caused by
attempts at Grey’s hospital
to resuscitate Mr Craig. This aspect
will be dealt with later in the judgment. I shall hereafter refer to
Mr Craig as the deceased.
[16] Whilst there was some expert
evidence indicating that state hospitals such as Grey’s were not
geared to deal with the kind
of injury sustained by the deceased, it
appears however, that one can, on the totality of the expert
evidence, accept that had
the police transported the deceased to
hospital shortly after his arrival at the Hammarsdale police station,
surgical intervention
would in all probability have saved his life.
[17] Towards the end of June 2006 Mrs
Loraine Craig, the first respondent, instituted action in the
Pietermaritzburg High Court
against the three appellants, the
Minister of Safety and Security, the Officer commanding the
Hammarsdale police station and Inspector
Mwandla. Mrs Craig
instituted the action both in her personal capacity and as legal
guardian of her three minor daughters, claiming
delictual damages for
loss of support. In her particulars of claim she asserted that police
at the Hammarsdale police station were
under a legal duty to ensure
the well-being of an arrested person, such as the deceased, and that
they had negligently breached
that duty in relation to him.
[18] According to Mrs Craig the police
were negligent in the following respects. They had detained the
deceased without ensuring
that he had immediate medical attention.
Furthermore, they had failed to ensure that he was transported to
hospital immediately
and only did so some 16 hours later. In
addition, they failed to heed complaints concerning recurring pain
made by the deceased
to the officer commanding and they had ignored
an instruction by Dr Thompson that the deceased should be transported
to hospital.
[19] At the commencement of the trial
and after the parties had reached agreement in this regard, the court
below made an order
in terms of Uniform rule 33(4), that the
trial proceed first on the question of liability, the issue of
quantum to stand over
for determination at a later stage, if
necessary.
[20] After hearing evidence the High
Court (Koen J) gave judgment in favour of Mrs Craig and the three
appellants were held liable,
jointly and severally, for such damages
as Mrs Craig and her children may prove to have suffered.
[21] It is that order, with the leave
of the court below, against which the appellants presently appeal.
Before us the parties were
agreed that the appeal turns on whether
the assessment of the evidence by the court below was correct. It is
thus necessary to
examine more closely the findings of the court
below and to consider them against the recorded evidence and then to
decide whether
intervention by this court is justified.
[22] On a crucial aspect - one in
dispute - Dr Thompson testified that he had issued an instruction
that Inspector Mwandla should
take the deceased to the police station
to enable his family to transport him to hospital as soon as
possible. The court below
did not find Dr Thompson an impressive
witness. It held that, although Dr Thompson was not a party to the
litigation, he was guilty
of a dereliction of duty in not arranging
for the immediate summonsing of an ambulance and the hospitalisation
of the deceased.
Koen J said the following concerning Dr Thompson:
‘
His guarded evidence
in this regard made him less than a reliable witness, but it also
does not mean that his evidence must be rejected
in
toto
.’
[23] The court below then proceeded to
accept Dr Thompson’s evidence, in preference to Inspector Mwandla’s
denial that no such
instruction was given by the former. For this the
court found corroboration in the telephonic report Dr Thompson had
made to Captain
van Zandten, the Hammarsdale Station Commander, on
the morning of Monday 21 July 2003, as recorded in the latter’s
diary.
During the telephonic discussion Dr Thompson had complained to
Captain van Zandten that Inspector Mwandla had ignored his
instruction.
The court below found further corroboration in a letter
authored by Dr Thompson dated 24 July 2003, which according to
him
he had sent to Captain van Zandten, and which repeated the
complaint.
[24] Of course, if Dr Thompson had in
fact issued the instruction, as testified to by him, and if one can
conclude that it was ignored
by Inspector Mwandla, liability on the
part of the appellants would unarguably ensue.
[25] In order to arrive at a decision
in the present appeal, it is necessary to consider in some detail the
material parts of the
evidence adduced and its assessment by the
court below, particularly in relation to the disputes referred to in
paragraph 7. I
proceed to do so.
[26] First, Dr Thompson.
Notwithstanding a paucity of information on the official form that he
had completed during his examination
of the deceased, and even though
he recorded the deceased as being ‘well’, Dr Thompson testified
that the deceased had complained
of severe pains at the back of his
chest. He had consequently instructed Inspector Mwandla to take the
deceased to the Hammarsdale
police station, to enable family members
to take him to hospital for observation and that this should be done
as soon as possible.
Dr Thompson was unable to explain why these
instructions had not been included in the official form. Nor, why no
written referral
for medical observation and, if necessary, for
treatment was directed by him to the medical staff of the hospital
concerned.
[27] Dr Thompson testified that, in
light of the instruction given by him, it was likely that he would
have written a letter of
referral to Grey’s hospital, which
presumably would have been handed to Inspector Mwandla. He did not
have a copy of such a letter
nor is it clear from his evidence that
he did in fact write such a letter. It is unclear what such a letter
would have instructed
or requested the doctor in charge at Grey’s
hospital to do.
[28] In a letter written to the State
Attorney, more than three years after the collision referred to
above, Dr Thompson stated
that, when he saw the deceased on the
night in question, the latter was in a lot of pain and possibly in
‘early shock’. He
wrote further: ‘My definite impression was
that he needed to go for x-rays and further medical assessment.’
This letter was
written after the present litigation commenced and
the material impressions recorded therein do not appear on the
official form
completed at the time that Dr Thompson examined the
deceased.
[29] During his testimony, Dr Thompson
accepted that Inspector Mwandla is a well-respected policeman whose
word he had no cause
to doubt.
[30] Under cross-examination Dr
Thompson accepted that it was necessary to complete the official form
with all the accompanying
details. He recalled that the deceased had
walked into his rooms unaided. He could not recall whether he was
told that the deceased
had been involved in a head-on collision.
Dr Thompson failed to note the deceased’s blood pressure on
the official form
and could not recall whether it had been taken by
him. He testified that it was his usual practice to note a patient’s
blood
pressure on the form. He also did not record the necessary
details in relation to the deceased’s pulse. Surprisingly, he could

nevertheless, more than three years after the event, recall that he
had taken the deceased’s pulse and that it had been a ‘normal

strong pulse’. Alongside the words: ‘Signs of shock’, where
they appear in the official form, Dr Thompson wrote the
word
‘well’. When this was pointed out to him he responded as follows:
‘
I am trying to convey
that he is a normal person who is generally fit and well.’
[31] With reference to the official
form Dr Thompson accepted that he had not identified any problems
with the deceased’s heart,
lungs, extremities or his abdomen. No
complaint by the deceased about pain in the chest area was recorded
on the official form.
However, Dr Thompson did record that, at the
time of the examination, the deceased was strongly under the
influence of alcohol
and that it was probable that, at the time of
the incident, he had been under the influence of alcohol.
[32] When Dr Thompson was asked which
of his observations on the official form would have alerted him to
the need for the deceased
to be hospitalised, he replied that the
pain in the shoulder area is what would have required observation. He
attempted, during
cross-examination, to shift the area of concern
from the shoulder to the right-hand side chest area to tie in with
what we now
know is a rupture of the descending aorta.
[33] Later, Dr Thompson was asked if
he had suspected that the deceased had sustained internal injuries.
He replied that he suspected
nothing other than fractured ribs. This
suspicion does not appear on the official form nor did Dr Thompson
testify that he
had in fact performed a clinical examination to
detect, at the very least superficially, whether the deceased had
sustained fractures
of his ribs.
[34] The doctor further testified that
he had not considered it ‘absolutely essential’ that the deceased
be transported to hospital
immediately. According to him the details
he supplied in the letter he wrote to the State Attorney (referred to
in para 28 above),
were gleaned from the official form. This, of
course, cannot be so. Asked where he had sourced the information
concerning the ‘early
shock’ he described in the letter,
Dr Thompson stated that it could be accepted that he had
speculated about this.
[35] Strangely, Dr Thompson’s letter
to the State Attorney records that his instructions to Inspector
Mwandla had been relayed
by the deceased to members of his family at
the Hammarsdale police station. When it was put to him that he could
not have known
this as he had not been present at the police station,
he replied that it could be accepted that this too was speculation on
his
part. Dr Thompson was singularly unimpressive in this regard
and conceded that this part of his letter to the State Attorney
was
misleading.
[36] It will be recalled that the
court below found corroboration for Dr Thompson’s testimony in
the telephonic report he
had made to the Station Commander, Captain
van Zandten as recorded in the latter’s diary, complaining that his
instruction to
Inspector Mwandla had not been followed. According to
Captain van Zandten, he had ascertained that the instruction which Dr
Thompson
alleged he had issued had not been in writing. Dr Thompson,
however, could not recall that telephone conversation.
[37] A curious feature of Dr
Thompson’s testimony is the letter he produced, which he said he
had sent to Captain van Zandten,
complaining that the police had
ignored the instruction given to Inspector Mwandla. It will be
recalled that the court below found
corroboration for his testimony
in the letter he supposedly wrote. The copy of the letter produced by
Dr Thompson was not
under his letterhead and he could not recall
how he had sent it. Captain van Zandten denied receipt of the letter.
However, he
testified that during a subsequent visit to Dr Thompson’s
rooms, he had requested that the complaint be put in writing, but

that as far as he was concerned this request had gone unheeded.
[38] Dr Thompson could not recall that
Captain van Zandten had paid him a visit. According to Captain van
Zandten, he and Dr Thompson
knew each other very well and the latter
was well aware of the fact that he was the Station Commander. The
doctor’s denial that
he knew that Captain van Zandten was the
Station Commander at the relevant time, even though the latter was
one of his patients,
is therefore very strange.
[39] Next, I turn to consider the
relevant parts of Inspector Mwandla’s testimony and the manner in
which the court below dealt
with it.
[40] Koen J considered that Inspector
Mwandla’s decision to transport the deceased to Grey’s hospital,
rather than to Dr Thompson’s
rooms, indicated that he must
have had a prior inkling that the deceased had been unwell and that
this supported Dr Thompson’s
testimony that he had expressed ‘some
caveat
’
to the policeman. This, of course, ignores Inspector Mwandla’s
testimony to the effect that, in his experience, Dr Thompson
was not
a doctor who performed thorough examinations and that he certainly
did not dispense medication. Dr Thompson himself confirmed
that, at
the relevant time, district surgeons were precluded by the Department
of Health from administering treatment.
[41] According to Inspector Mwandla,
Dr Thompson’s examination of the deceased had lasted approximately
ten minutes, rather than
half an hour as testified to by the doctor.
The paucity of information in the official form supports Inspector
Mwandla in this
regard. Furthermore, Inspector Mwandla’s testimony
that the deceased had walked into the rooms unaided is supported by
Dr Thompson.
Inspector Mwandla was adamant that he had not received
the instruction testified to by Dr Thompson. As indicated in the
preceding
paragraph, the court below described the instruction as
‘some
caveat
’
because Dr Thompson’s evidence mutated in this regard. He was
inconsistent in his description of his concerns about the deceased

and the concomitant ‘instruction’, particularly when he was
confronted with the contents of the official form, the letter he

wrote to the State Attorney and the letter allegedly sent to Captain
van Zandten.
[42] The court below held it against
Inspector Mwandla that, en route to Mpumalanga police station to
collect the deceased, he had
stopped at the Hammarsdale police
station to pick up official forms, which were required to be
completed when an arrested person
was to be transported to hospital.
The court below reasoned that this supported Dr Thompson’s
assertion that he had issued the
instruction to Inspector Mwandla to
see to it that the deceased was transported to hospital. Koen J
stated that Inspector Mwandla’s
explanation that he did this to
save time had a hollow ring to it. According to the learned judge, a
further negative feature was
that, instead of having the Station
Commander sign the official form, Inspector Mwandla signed it
himself, indicating that the
importance of what had been communicated
to him by Dr Thompson had dawned on him and he was now taking urgent
remedial steps to
redress the situation.
[43] These conclusions by the court
below ignore Inspector Mwandla’s testimony that, when he had
received a radio instruction
to collect the deceased and transport
him to the district surgeon, he was informed that the deceased was
experiencing chest pains
and that, in the light of his experience of
Dr Thompson’s manner of examining patients and not treating
them, he realised
that he would have to transport the deceased to
hospital instead. The nature of the deceased’s complaint, relayed
to him, suggested
that the deceased would need to be taken to
hospital and he would have had to complete the official forms to
enable him to do so.
[44] In the sequence of events
referred to above, there is nothing inherently sinister in Inspector
Mwandla completing the form
himself and not obtaining the Station
Commander’s signature, as was officially required. Furthermore, a
detailed examination
of the record reveals that Inspector Mwandla was
a much more satisfactory witness than Dr Thompson and his testimony
much more
reliable.
[45] It is necessary to record that,
in the short time that Inspector Mwandla had been in the deceased’s
presence, during the
time that he transported him to and from the
district surgeon and at the police station, the latter had shown no
signs of distress,
nor complained. Inspector Mwandla’s testimony
that the deceased walked into the Hammarsdale police station unaided
was unchallenged.
[46] After his arrival at the police
station, Inspector Mwandla telephoned the branch commander to
ascertain whether the deceased
should be released on bail. He was
told by the branch commander that, because people had died as a
result of the collision caused
by the deceased’s intoxicated
condition, he should not be released on bail. Inspector Mwandla
relayed this to Sergeant Mthembu,
who at the time was on duty at the
Hammarsdale police station. Inspector Mwandla had no communication
with the deceased’s family
and left the police station shortly
thereafter.
[47] I now turn to deal with the
treatment by the court below of the evidence of Inspector Mkhulise,
another policeman who was at
the Hammarsdale police station at the
time that the deceased was brought there. The judgment of the court
below states that Inspector
Mkhulise testified that the deceased had
complained to him at least once about experiencing chest pain and
that his family had
complained at least once about his condition. An
examination of the record shows that, on the contrary, Inspector
Mkhulise repeatedly
testified that the deceased had never complained.
When it was put to him that, according to the first respondent, the
deceased
had complained that he was experiencing pain, Inspector
Mkhulise responded as follows:
‘
It is untrue, he never
complained of anything.’
Two lines later in the record this
denial is repeated.
[48] According to Inspector Mkhulise,
he had informed the deceased’s family that bail would not be
granted. They were unhappy
about this and immediately thereafter
asked if they could take him to hospital, saying that he was unwell.
The deceased himself
made no such complaint. Inspector Mkhulise told
them that the deceased had just come from Dr Thompson and it did not
appear that
there was any need for him to go to hospital. The family
repeated the request to take the deceased to hospital. After the
second
request, Sergeant Mthembu asked Inspector Mkhulise to summon
paramedics to appease the family.
[49] The paramedic, Mr Boy Nkabela,
arrived and Inspector Mkhulise showed him the deceased so that he
could examine him. The deceased,
however, refused to be examined by
Mr Nkabela, who then left shortly thereafter.
[50] The court below, having
mistakenly accepted that the deceased had complained of chest pains
to Inspector Mkhulise, reasoned
that
this
fact, together with the latter’s own observations, must have been
the cause for him contacting the paramedics. Continuing the
reasoning
on this mistaken premise, the court below held that it would then
have been highly unlikely that the deceased would have
refused to be
transported to hospital.
[51] These conclusions discount the
reasonable explanation given for summoning the paramedics. It is
highly likely that, given the
deceased’s highly intoxicated state,
he would be unco-operative and refuse to be examined.
[52] Insofar as the paramedic, Mr
Nkabela’s evidence is concerned, the court below noted that he,
like Dr Thompson, might potentially
be exposed to a claim for
damages. The court found it unlikely that Mr Nkabela could reliably
recall incidents that occurred several
years before. Koen J held it
against Mr Nkabela that, whilst he was sketchy on details, he was
nevertheless able to recall who
his partner had been on the morning
in question. The court below did however, find corroboration for his
evidence that the deceased
was unco-operative and argumentative, in
the evidence of Dr Laubscher who had attended to the deceased upon
his arrival at Grey’s
hospital, and had found him in an agitated
and aggressive state.
[53] Insofar as the testimony of Mr
Everton and Mrs Craig is concerned, the court below rightly found
that they had cause to, and
did, exaggerate and over-dramatise
events. Both testified that the deceased was in constant and obvious
excruciating pain. According
to Mrs Craig, the deceased had vomited
blood in a toilet at the police station. She testified that the
paramedics had conducted
the most cursory examination of the
deceased, informed them that there was nothing wrong with him and
then departed. She could
not explain why she had not told the
paramedics that her husband had vomited blood, an important
indication that something was
amiss.
[54] There is force in the submission
on behalf of the appellants that, had the deceased been in obvious
excruciating pain which
raised his family’s concerns, they would
all have been intent on ensuring that he was properly examined by
Mr Nkabela, the
paramedic, and would have described in as much
detail as possible the symptoms they had witnessed. Furthermore, all
the family
members would have ensured they were in attendance to see
to it that the deceased received the necessary attention.
Inexplicably,
Mr Everton stood outside smoking whilst Mr Nkabela
attempted to tend to the deceased.
[55] Inspector Emmanuel Zungu, who was
also at the Hammarsdale police station on the night in question,
corroborated in broad terms
the evidence of Inspector Mkhulise and Mr
Nkabela.
[56] There was expert medical evidence
that the deceased’s level of intoxication could very well have
masked the pain usually
attendant on the kind of injury he had
sustained.
[57] The pre-trial conference minute
recorded that the parties were agreed that all the injuries noted as
a result of the post-mortem
examination were sustained as a result of
the collision. That notwithstanding, counsel explored whether the
fractures of the ribs
could have been caused by efforts to
resuscitate the deceased at Grey’s hospital. The medical evidence
was that, as regards the
fractures that would have been an indicator
of the injury that caused the deceased’s death, namely fractures of
the second, third
and fourth ribs (posteriorly), the likelihood was
that they were caused by the collision
Conclusions
[58] Although courts of appeal are
slow to disturb findings of credibility, they generally have greater
liberty to do so where a
finding of fact does not essentially depend
on the personal impression made by a witness’ demeanour, but
predominantly upon inferences
and other facts and upon probabilities.
In such a case a court of appeal with the benefit of a full record
may often be in a better
position to draw inferences.
2
[59] In the present case, as
demonstrated above, the credibility findings are not borne out by the
record. The reasoning of the
court below in relation to the
probabilities, is at times, based on incorrect facts and is flawed in
the respects referred to above.
[60] In
Mtati
v Minister of Justice
1958
(1) SA 221
(A), this court (at 224) emphasised the duty of officials
who have prisoners in their charge to see to their well-being. Courts

should obviously be vigilant to ensure that officials who have in
their charge those whose freedom of movement has been restricted,

comply with the obligation to ensure their well-being.
[61] In
Minister
of Police v Skosana
1977
(1) SA 31
(A), the policemen in question were negligent in not
ensuring treatment expeditiously for an arrested person who had been
drunk
and had started showing obvious signs of pain after he had
sobered up, and who had complained to the police about his condition.

There was a further delay after an instruction by a medical doctor
that he be taken to hospital immediately. The doctor concerned
had
written a note to the doctor in charge of the hospital and had handed
it to a policeman. Police standing orders place an obligation
on
members of the police to whom it appears that detainees are in
distress and are therefore injured or ill to obtain the necessary

medical assistance for them. The police in
Skosana
were found to be negligent and the Minister was consequently held
liable.
[62] The well-known test for
negligence is set out in
Kruger
v Coetzee
1966 (2) SA 428
(A) at 430:
‘
For the purposes of
liability
culpa
arises if ─
(
a
) a
diligens
paterfamilias
in the position of the defendant ─
(i) would foresee the
reasonable possibility of his conduct injuring another in his
person or property and causing him patrimonial
loss; and
(ii) would take
reasonable steps to guard against such occurrence; and
(
b
) the
defendant failed to take such steps.’
[63] The primary question in the
present case is whether the court below was correct in its conclusion
that Dr Thompson had issued
the instruction referred to above and
that the police had been negligent in ignoring it.
[64] In my view the court below was
manifestly wrong in accepting the evidence of Dr Thompson. He made
the verbal report relied
on by the court below to Captain van Zandten
after the deceased’s death was reported in the media and was common
knowledge in
Camperdown, and after it must have become known to him
at least that there was a concern about culpability.
[65] The court below was correct to
initially approach his evidence with caution but erred in relaxing
that reservation.
[66] Dr Thompson’s apparent
subsequent concern about the deceased’s condition is not borne out
by the notes he made on the official
form. The form actually
evidences the contrary. It notes that, save for the pain in the
shoulder blade, the deceased was otherwise
‘well’. In my view
this supports the conclusion that there was no referral letter. If
there had been one I can think of no
reason why Inspector Mwandla,
whom everyone ─ Dr Thompson included ─ regarded as a dutiful
policeman, would ignore it.
[67] Dr Thompson was clearly not
candid concerning his knowledge of who the Hammarsdale Station
Commander was. The difficulties
he had in explaining the source of
the information contained in his letter to the State attorney
directly affects his credibility.
The unsatisfactory aspects in
relation to the letter that he claims he sent to Captain van Zandten,
referred to above, strongly
suggest that his testimony in this regard
was contrived.
[68] In light of its conclusion that
Dr Thompson issued the instruction and that it was ignored, the court
below did not deem it
necessary to consider the conduct of other
policemen during relevant times.
[69] As demonstrated above, the court
below was right not to place reliance on the evidence of Mrs Craig
and Mr Everton. I can see
no reason to disbelieve the police version
of events. If their version is accepted, the following picture
emerges. The deceased
had been seen by the district surgeon who had
identified no medical problem that required further medical
attention. The deceased
walked unaided and had no ostensible signs of
significant injury. At the Hammarsdale police station the deceased
did not complain
that he was unwell and did not show any obvious
signs of distress. The deceased’s family members requested that
they be allowed
to take him to hospital only after bail had been
refused. When a second request was made Sergeant Mthembu issued an
instruction
that paramedics be summoned. Mr Craig refused to be
examined. When the deceased himself complained at the Mpumalanga
police station
that he was unwell, that fact was noted and Inspector
Mwandla summoned. There is no indication that the latter delayed
unduly and
that he did not transport Mr Craig to Grey’s hospital
expeditiously. In light of what is set out above it can hardly be
said
of the police that they were negligent.
[70] I am aware of the plight of the
deceased’s wife and daughters. They have lost a breadwinner and
appear to be without means.
If, of course, the police had behaved
negligently and wrongfully, they should be held to account. On the
other hand, good policemen
who behave properly and execute their
duties conscientiously and often under trying circumstances, are
entitled to have their reputations
kept intact and should not be
saddled with liability unjustifiably.
[71] For all the reasons set out above
the following order is made:
1. The appeal is upheld with costs,
such costs to include the costs of two counsel.
2. The order of the court below is set
aside and substituted as follows:
‘The
plaintiffs’ claims are dismissed with costs, such costs to include
the costs consequent upon the employment of two (2)
counsel.’
_________________
M S NAVSA
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: R Seegobin SC
T
S I Mthembu
Instructed
by
State
Attorney Durban
State
Attorney Bloemfontein
For
Respondent: J Marais SC
V
M Naidoo
Instructed
by
Chetty
Asmall and Maharaj Pietermaritzburg
Webbers Bloemfontein
1
Hereafter referred to as Inspector Mwandla.
2
Union Spinning Mills (Pty)
Ltd v Paltex Dye House (Pty) Ltd & another
2002 (4) SA 408
(SCA) para 24 and
Louwrens
v Oldwage
2006 (2) SA 161
(SCA) para 14.