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[1993] ZASCA 40
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Minister of Justice v Hofmeyr (240/91) [1993] ZASCA 40; 1993 (3) SA 131 (AD); [1993] 2 All SA 232 (A) (26 March 1993)
Case No 240/91
IN THE SUPREME COURT OF S
O
UTH AFRICA APPELLATE DIVISION
In the matter between:
THE MINISTER OF JUSTICE
Appellant
and
WILLIAM A
HOFMEYR
Respondent
CORAM:
HOEXTER, SMALBERGER, F H GROSSKOPF,
GOLDSTONE JJA et NICHOLAS, AJA
HEARD:
15 February 1993
DELIVERED:
26 March 1993
J U D G M E N T
HOEXTER, JA
2
HOEXTER, JA
The appellant is the Minister of Justice. In
the
Cape of Good Hope Provincial Division the respondent instituted an action for
damages in the sum of R100 000 against the appellant
as the first defendant.
Considering that the Minister of Law and Order had an interest in the action the
respondent joined him as
the second defendant. When the matter proceeded to
trial the second defendant was unrepresented and the action was resisted only
by
the appellant. In what follows reference will be made to the respondent as "the
plaintiff" and to the appellant as. "the defendant".
The plaintiff succeeded in
his action against the defendant. The trial judge (King J) ordered the defendant
to pay damages in the
sum of R50 000, interest thereon, and costs. No costs were
ordered against the Minister of Law and Order. With leave of the court
a
3
quo the defendant appeals against the whole of the judgment of King J.
The
judgment of the court below, has been reported sub nom Hofmeyr v Minister of
Justice and Another 1992(3) SA 108(C). In what follows
recourse will be had to
the judgment as reported when reference is made to the trial court's findings of
fact and law. In the judgment
the evidence adduced at the trial is explored at
some length. For present purposes a summary of the material facts of the matter
will suffice.
At the beginning of the 1988 academic year the plaintiff, who was then a man
in his mid-thirties, was a final-year LL.B student at
the University of Cape
Town. On 22 April 1988 he was arrested in terms of reg 3 of the Emergency
Regulations (see Proc R96 of 11
June 1987) promulgated under the Public Safety
Act 3 of
1953. For
4
some days thereafter he was held in the police cells at Caledon Square. From
3 May to 6 October 1988 the plaintiff was detained at
Pollsmoor Prison ("the
prison"). The said regulations expired on 10 June 1988 whereafter the
plaintiff's detention was in terms of
reg 3 of the Security Emergency
Regulations (see Proc R97 of 10 June 1988). It is to the period of his detention
at the prison, which
lasted some five months, that the plaintiff's action
relates.
The legality of his arrest and his detention thereafter is not in issue. What
is in issue is the propriety or otherwise of the conditions
in which he was held
at the prison. The plaintiff's case was that the manner in which he was treated
involved an aggression upon
his person and an unlawful infraction of his
fundamental personality rights.
The plaintiff's chief complaint was that, save
5
for two brief periods (being respectively from 12 to 20 July and 29 September
to 6 October 1988) he was unlawfully segregated from
all other prisoners at the
prison in circumstances amounting to effective solitary confinement. In addition
thereto the plaintiff
complained that during his detention he had been subjected
to unlawful treatment in a number of other ways ("the ancillary complaints").
The ancillary complaints were that the prison authorities (1) had failed to
allow the plaintiff to exercise indoors when the weather
did not permit outdoor
exercise; (2) had failed to allow plaintiff access to books and magazines (other
than study material) from
outside the prison; (3) had failed to allow the
plaintiff to receive regular newspapers and foodstuffs from outside the prison;
(4)
had failed to allow the plaintiff to write and receive more than two letters
per week until 28 September,
6
whereafter the plaintiff was allowed to write and
receive four letters per
week; (5) had failed to allow
the plaintiff access to the centrally broadcast radio
system, save for the last three weeks when he was
hospitalised, or, alternatively, had failed to allow the
plaintiff to have and use an FM radio; (6) had failed
to allow the plaintiff reasonable access to a television
set or to video screenings.
Preparatory to a consideration of the
plaintiff's
aforementioned complaints in the court below
the trial judge affirmed as a general principle (at
115C-D) applicable to the case before him -
"...that a person incarcerated in prison retains all such freedoms, rights
and liberties as have not been lawfully taken away from
him."
In regard to the position of prisoners in a gaol the
learned judge then proceeded to quote (at 115D-J) what
he described as "two classic statements" taken from
7
earlier decisions of this court. Each of the two judicial utterances is
well-known and oft-quoted in this branch of our law. They
are, in my view, of
such cardinal importance that it is useful to repeat them in this judgment. To
appreciate their proper significance
it is necessary to see in what particular
context each was made.
The first statement cited by King J comes from the decision in Whittaker v
Roos and Bateman; Morant v Roos and Bateman
1912 AD 92
("the Whittaker case").
The decision was unanimous but of the five judges of appeal who sat, three (Lord
de Villiers CJ, Innes J,
and Solomon J) each delivered a separate judgment.
Whittaker was an awaiting-trial prisoner unable to raise the bail to which he
had been admitted. During his detention he was segregated from other
awaiting-trial prisoners and kept in solitary confinement. He
8
maintained that in various ways he had been subjected
to
improper treatment. Morant's case was broadly similar.
They instituted
an action for damages against the
governor of the Johannesburg Prison and the
Director of
Prisons. The judgment in their favour by the trial court
was
upheld by this court. The ratio decidendi was that
the object of the
detention of an awaiting-trial
prisoner is to secure his appearance at his
trial; that
there had been a differentiation between the
treatment
accorded to the plaintiffs and that accorded to
other
awaiting-trial prisoners which was neither warranted by
the prison
regulations nor required by the necessities
of prison discipline; and that
the exceptional severity
involved in such discrimination, particularly in
the
case of Whittaker, had been tantamount to a substantial
punishment.
The citation by King J is from portion of
the judgment of Innes J. Hereunder
I shall slightly
9
shorten the excerpt, and to the quotation thus abridged
I shall refer as
"the Innes dictum". The Innes dictum
is couched in the following words (at
122-3):-
"True, the plaintiffs' freedom had been greatly impaired by the legal process of
imprisonment; but they were entitled to demand respect
for what remained. The
fact that their liberty had been legally curtailed could afford no excuse for a
further illegal encroachment
upon it. Mr Esselen contended that the plaintiffs,
once in prison, could claim only such rights as the Ordinance and the
regulations
conferred. But the directly opposite view is surely the correct one.
They were entitled to all their personal rights and personal
dignity not
temporarily taken away by law, or necessarily inconsistent with the
circumstances in which they had been placed. They
could claim immunity from
punishment in the shape of illegal treatment, or in the guise of infringement of
their liberty not warranted
by the regulations or necessitated for purposes of
gaol discipline and administration."
The second
classic statement selected by King
J comes from the dissenting judgment by Corbett JA in
Goldberg and Others v Minister of Prisons and Others
10
1979(1) SA 14(A)(to which reference will hereafter be
made as "the
Goldberg case"). Goldberg and his fellow
appellants were serving long
sentences for
contraventions of the General Law Amendment Act 1964,
the Suppression of Communism Act 1950 and the Terrorism
Act 1967. They and
other long-term prisoners similarly
convicted were held in a special section of the prison
set aside for white prisoners sentenced under the
security laws. From the court of first instance they
unsuccessfully sought a ruling that the Commissioner of
Prisons ("the commissioner") had wrongly exercised his
discretion in denying them access to radio news and
reading matter on current events. By a majority of
four to one this court rejected an appeal against the
order of the court below. At the hearing of the appeal
the relief claimed was restricted, in the main to
'(a) a declaration that appellants are entitled to receive books and
11
periodicals of their choice, subject to any rules and conditions which may be
prescribed under reg 109(4) of the Prison Regulations.'
During the course of argument appellants' counsel
conceded that a prisoner
was not entitled as of right
under the common law to receive books and
periodicals of
his choice, and that such right had to be sought in
the
Prisons Act and prison regulations (at 23H),
specifically in the provisions of reg 109(4) (at 28H).
The question for
decision on appeal was therefore a
narrow one. The court was not concerned with the wider
question whether or
not the Act and the regulations
generally confer any rights upon prisoners which are
enforceable by proceedings instituted in a court of law
(at 27D). It was held (at 30E) that there were no
indications in reg 109(4) that it was intended that
prisoners would be entitled as a matter of right to
receive books and papers from outside sources.
12
Notwithstanding the circumscribed nature of the issue, Wessels ACJ, who
delivered the majority judgment, embarked upon a fairly wide-ranging
discussion
of the "rights" of prisoners. He held that the power of the commissioner to
determine the manner in which prisoners were
to be treated necessarily included
the power to make separate determinations in respect of categories of prisoners
or individual
prisoners; and that provided the commissioner's decision was not
inconsistent with the Prisons Act 8 of 1959, the Prison Regulations,
or a
judicial order, a court could not review his decision. The learned Acting Chief
Justice decided that, as the appellants had
not established on the part of the
commissioner a failure to apply his mind to the matter or to exercise his
discretion at all, that
there was no basis for any finding that the provisions
of the Prisons Act or the Regulations had been disregarded.
13
In the course of his judgment Wessels ACJ referred (at 26F-G) to the earlier
decision by this court in Rossouw v Sachs 1964(2) 551(A),
a case dealing with
the rights of a prisoner detained under sec 17 of Act 37 of 1963 ("the Rossouw
case"). In delivering the judgment
of the court in the Rossouw case Ogilvie
Thompson JA remarked (at 562A) that it was "questionable whether prison
regulations confer
legal rights upon prisoners"; and (at 564 in fin - 565) that,
although in certain respect it might be vague, the distinction between
"necessities" and "comforts" was a valid one, and "that the detainee is entitled
to the former as a matter of right but to the latter
only as a matter of grace."
Wessels ACJ (at 30 in fin-31) did not find it necessary to deal with the
distinction "between necessaries
or basic rights, on the one hand, and
privileges or comforts, on the other hand." At 31A-B
14
Wessels ACJ remarked:-
"Such basic rights or necessaries as, eg. food, clothing, accommodation and
medical aid, are dealt with in the regulations. The fact
that these regulations
deal with facilities generally regarded as basic to the maintenance of a
reasonably civilised minimum standard
of living may no doubt be relevant to the
question whether it was intended to confer rights of the kind referred to above.
In my
opinion, access to the publications mentioned in reg 109(4) and to sources
of news of current events cannot be regarded as being
basic to maintaining the
minimum standard of living."
The dissenting judgment of Corbett JA begins at 38 in
fin. The learned judge of appeal pointed out (at 39A-C)
that although counsel for the appellants in presenting
his case to the court had disavowed reliance upon the
common law, the common law position of a sentenced
prisoner and the general effect thereon of the Prisons
Act and the prison regulations had been debated to some
. extent at the
Bar; and that he was therefore minded to
make "some tentative observations in this connection".
15
Following immediately thereon Corbett JA made the
remarks quoted by King J
as the second classic
statement. I shall refer to what Corbett JA said in the
passage concerned
as "the residuum principle". At 39C-
E the following observations were made:-
"It seems to me that fundamentally a convicted and sentenced prisoner retains
all the basic rights and liberties (using the word
in its Hohfeldian sense) of
an ordinary citizen except those taken away from him by law, expressly or by
implication, or those necessarily
inconsistent with the circumstances in which
he, as a prisoner, is placed. Of course, the inroads which incarceration
necessarily
make upon a person's personal rights and liberties (for sake of
brevity I shall henceforth speak merely of 'rights') are very considerable.
He
no longer has freedom of movement and has no choice in the place of his
imprisonment. His contact with the outside world is limited
and regulated. He
must submit to the discipline of prison life and to the rules and regulations
which prescribe how he must conduct
himself and how he is to be treated while in
prison. Nevertheless, there is a substantial residuum of basic rights which he
cannot
be denied; and, if he is denied them, then he is entitled, in my view, to
legal
16
redress." In support of the approach reflected in the residuum principle
Corbett JA (at 39H-40) cited a passage from the judgment
of Innes J in the
Whittaker case (at 122-3) which included the Innes dictum. The Innes dictum had
also been quoted by Ogilvie Thompson
JA in the Rossouw case (at 560F-G), the
learned judge of appeal pointing out (at 560G) that the Whittaker case had
involved "detention
in a wrong place, in a manifestly unauthorised manner, and
plainly inconsistent with the status of the plaintiffs as awaiting-trial
prisoners." In the Rossouw case Ogilvie Thompson JA further expressed the view
(at 564 C) that "a detainee cannot ... rightly be
equated with an unconvicted
prisoner."
In the course of his dissenting judgment in the Goldberg case Corbett JA (at
40D-F) discussed the Rossouw case but remarked (at 40F-H)
that he did not
17
read the judgment in that case -
"....as indicating or implying that the
general approach adopted in Whittaker's case
(as expounded by Innes JA) is not relevant to
the case of a sentenced prisoner, due
allowance being made for the essential
differences that exist between his position
and that of an awaiting-trial prisoner. It
is also of considerable interest to note that
in the United States of America the same
approach is adopted in regard to sentenced
prisoners. According to American
Jurisprudence 2nd ed vol 60 at 846:
'A prisoner
retains all the rights of an ordinary citizen except those expressly, or by
necessary implication, taken from him by law.'
(See also Coffin v Reichard
155 ALR 143.)
Furthermore, a convicted prisoner's entitlement as a citizen to certain basic
rights and to their enforcement by a court of law,
where necessary, was asserted
in this country in the case of Hassim v Officer Commanding, Prison Command,
Robben Island 1973(3) SA
462(C), correctly in my
view."
In Cassiem and Another v Commanding Officer,
Victor
Verster Prison, and Others 1982(2) SA 547(C) the court
had to examine the rights of detainees under sec
18
10(1) (a) bis of the Internal Security Act 44 of 1950.
In the course of
his judgment (at 551C-E) E M Grosskopf
J cited the Innes dictum and observed
that it was
unnecessary for him to consider whether the approach
therein reflected should be adopted in determining the
rights of convicted
prisoners or of detainees held under
other legislation. However the learned judge proceeded
to state (at 551F-G):-
"In respect of awaiting-trial prisoners, the correctness of the approach stated
by Innes J as far back as 1912 has to my knowledge
never been
questioned."
E M Grosskopf J found that detainees
held under the said
section of Act 44 of 1950 (see now sec 29 of Act 74 of
1982) have the same rights as awaiting-trial prisoners
except where such rights have been explicitly or
implicitly changed by regulation in terms of the
relevant legislation.
Since prisons are intended primarily as places
19
of punishment and rehabilitation of criminals it is inevitable, even in a
comparatively enlightened era, that the pattern of existence
for the inmates of
a prison will largely be bleak, cheerless and uncomfortable. It is true that
prison conditions have much improved
since the age when the lot of the average
prisoner was one of deliberate maltreatment and degradation. But while in
general social
changes have ameliorated conditions of detention one fundamental
feature of prison life persists. The prisoner is still very largely
at the mercy
of his gaolers. It is this fact which in the development of our law lends
particular significance to the decision in
the Whittaker case.
The Innes dictum serves to negate the parsimonious and misconceived notion
that upon his admission to a gaol a prisoner is stripped,
as it were,
20
of all his personal rights; and that thereafter, and for so long as his
detention lasts, he is able to assert only those rights for
which specific
provision may be found in the legislation relating to prisons, whether in the
form of statutes or regulations. The
Innes dictum is a salutary reminder that in
truth the prisoner retains all his personal rights save those abridged or
proscribed
by law. The root meaning of the Innes dictum is that the extent and
content of a prisoner's rights are to be determined by reference
not only to the
relevant legislation but also by reference to his inviolable common law
rights.
It is self-evident that the extent to which imprisonment will make necessary
inroads upon a particular prisoner's personal rights
will depend upon the reason
for his detention and the legislation applicable to him. Making full allowance
therefor, it
21
seems to me nevertheless that although the Whittaker
case was concerned
with the plight of awaiting-trial
prisoners the Innes dictum is one of
general
application. As a matter of logic and legal principle
I am unable
to see why it should not apply to every
prisoner in a gaol irrespective of
the reason for his
detention. As to principle, subsequent to the
Goldberg
case the following general proposition was stated by
Jansen JA in
delivering the judgment of this court in
Mandela v Minister of Prisons
1983(1) SA 938(A) (at
957E-F).
"On principle a basic right must survive incarceration except insofar as it is
attenuated by legislation, either expressly or by
necessary implication, and the
necessary consequences of incarceration."
For these
reasons I would respectfully express my
agreement with the general approach reflected in the
residuum principle enunciated by Corbett JA in the
22
Goldberg case. Moreover, in seeking to identify or to circumscribe basic
rights I would approve the critical approach adopted by Corbett
JA in the
Goldberg case in regard to the efficacy or otherwise of a test based upon the
distinction between comforts" on the one
hand and "necessities" on the other
hand. In this field of inquiry, so I consider, the line of demarcation between
the two concepts
is so blurred and so acutely dependent upon the particular
circumstances of the case that the distinction provides a criterion of
little
value. An ordinary amenity of life the enjoyment of which may in one situation
afford no more than comfort or diversion may
in a different situation represent
the direst necessity. Indeed, in the latter case, to put the matter starkly,
enjoyment of the
amenity may be a lifeline making the difference between
physical fitness and debility; and likewise the difference between
23
mental stability and derangement. I therefore also
respectfully endorse
the following remarks (at 41F-H) in
the dissenting judgment in the Goldberg case:-
"It is said that a prisoner has no right to study or to access to. libraries or
to receive books; that these facilities are privileges
not rights, comforts not
necessities. To my mind, this is an over-simplification. To test the position,
suppose that an intellectual,
a university graduate, were sentenced to life
imprisonment and while in gaol was absolutely denied access to reading material
- books,
periodicals, magazines, newspapers, everything; and suppose further
that there was no indication that this deprivation was in any
way related to the
requirements of prison discipline, or security, or the maintenance of law and
order within the prison and that,
despite his protests to the gaol authorities,
he continued to be thus denied access to reading material. Could it be correctly
asserted
that in these circumstances he would be remediless? That all he could
do was to fret for the comforts which he was
denied?"
In this appeal we have had the benefit of
full
and able argument on both sides. At the trial it was
argued on behalf of the defendant that the jurisdiction
24
of the court below to determine the issue before it had been ousted by the
regulations. (See the judgment of the trial court (at 110G-113F).
The objection
was dismissed as unsound (at 113F-G) by King J. Before us Mr Le Roux, who
appeared for the defendant, wisely abandoned
the objection.
I turn to the merits of the appeal. The head of the prison in which the
plaintiff spent his detention was Major Geldenhuys. The officer
in command of
the entire prison complex, which is a large one, was Brigadier Munro. During the
time of the plaintiff's detention
sustained and strenuous efforts were made on
his behalf from outside the prison in the hope of securing for him a less
isolated form
of incarceration. Of particular importance in the case are two
letters, respectively dated 3 August and 25 August, 1988 by Mr Hardcastle,
on
behalf of the plaintiff's attorneys, to
25
Munro. A copy of the former was sent to Geldenhuys.
Both letters are
quoted in full in the judgment of the
court below - the former at 118I-121C and the latter at
121E-122D. In both letters the situation of the
plaintiff is described as "effective solitary
confinement". In a telefax sent to the plaintiff's
attorneys on 1 September 1988 Munro stated that the
plaintiff was "not being held in isolation". In the
plaintiff's particulars of claim the main complaint is
that the plaintiff was held "in conditions amounting to
solitary confinement." The defendant's plea denies
this allegation.
The plaintiff's circumstances in the prison
are
largely common cause, and they are accurately
recounted in the judgment of King J (at 113G-114D) in
the following words:-
"Plaintiff was held alone in a small single cell in a group of eight cells,
with the other
26
cells being unoccupied. For the first two months of his detention and until
the arrival of another detainee, Shapiro, the metal grille
and metal door of
plaintiff's cell remained closed almost all the time. The group of eight cells
in which plaintiff was held was
separated from the rest of the section by a
wooden door which remained closed throughout plaintiff's detention there, except
when
access to or from the group of cells was required.
Plaintiff was guarded by a warder throughout his detention. For about the
first two months plaintiff was subject to a 24-hour guard
but thereafter he was
so guarded only during the day. Whenever plaintiff moved out of his cell he was
accompanied by a warder. Plaintiff
was not permitted to talk to other prisoners.
He exercised alone until 3 August 1988, whereafter he was allowed to exercise
with
the awaiting trial prisoners and he was not prevented from talking to them.
Apart from this the only other real contact plaintiff
had with other people was
on the occasions he had visits (from his parents and his attorneys), when he
visited the library and the
sickbay and when he attended video screenings as
well as when he visited the hospital outside the prison. When plaintiff was
moved
to the hospital section of the prison on 20 September 1988 and in the
period prior to the arrival there of another detainee, Harvey,
plaintiff was
even more
27
isolated in the sense that he was further removed from the communal cells
adjoining the group of single cells in which he had been
held.
An assessment of the isolated nature of plaintiff's detention would not be
complete without reference to certain other conditions
of his detention. The
central radio broadcast system was out of order in plaintiff's cell during the
entire period of his presence
there and plaintiff was not permitted access to a
portable radio. His access to books, magazines and newspapers was limited.
Although
he received a large number of postcards he was limited as to the number
of letters he could write and receive."
The
segregation of the plaintiff, so concluded the trial
judge (at 114D-E) resulted in his -
"....effective isolation....from the rest of the inmates of the prison, which
resulted in deprivation of ordinary human contact and
communication considerably
in excess of that applicable to awaiting trial and convicted prisoners at the
prison."
At the trial a large body of evidence was
adduced on
behalf of the plaintiff as to the effects
upon his health, both physical and mental, of the
28
conditions in which he was held. This evidence was
given by the plaintiff
himself, his father who visited
him in the prison, and two of his legal
representatives
who consulted with him at the prison during his
detention.
The nature of this testimony is
comprehensively reviewed by King J (at
133A-135B). It
was not challenged during cross-examination and no
evidence was led on behalf of the defendant to counter
it. As to the resultant deterioration in the health of
the plaintiff there is no good reason to differ from the
trial judge's acceptance of the evidence in question and
his findings based theron. In the course of his
judgment the learned judge said:-
"The effects on plaintiff were devastating. He is a frail young man who was not
in good health when he commenced his detention, but
he has an inner strength and
resolution which kept him from 'cracking-up' altogether. He testified to
progressively worsening depression,
an inability to concentrate and to study for
long periods, rapidly
fluctuating
29
changes of mood, a tendency to bouts of anger and irritation and difficulty in
sleeping. Some of these symptoms were still present
at the time of the trial -
plaintiff testified that he was still experiencing difficulty in concentrating,
became easily irritated
and had become obsessive about the need to be in the
company of others." (at 132H-J)
And later in the
judgment (at 135C-E):-
"It is evident from letters written, from personal approaches made and from
assistance solicited from others (a member of Parliament,
a group of academics
and a minister of religion all made representations on plaintiff's behalf) that
plaintiff's parents and his
attorneys were continuously concerned for
plaintiff's health and welfare throughout the period of his detention. This
concern reflects
the seriousness of the problems relating to plaintiff's health,
physical and psychological. I am satisfied on the undisputed evidence
that
plaintiff suffered very severely during the lengthy period of his detention.
This must have been aggravated by plaintiff's knowledge
that he was not a
convicted prisoner nor awaiting trial."
Mention has
already been made of the fact that
in its plea the defendant denied that the plaintiff had
been held "in conditions amounting to solitary
30
confinement." The defendant's plea went on to aver that
the plaintiff's
detention at the prison from 3 May to 6
October 1988:-
"....was lawful in all respects throughout the whole
period."
Particulars for trial having been sought by
the
plaintiff and furnished by the defendant, it emerged
that in support of its plea that the conditions of the
plaintiff's detention had been lawful the defendant
would at the trial invoke the defence of statutory
justification. In its response to the plaintiff's
request for particulars for trial the defendant stated:
"First Defendant admits that Plaintiff was caused or allowed to be held
segregated from all other prisoners save for the period 1
2 July to 20 July
1988, the reason being that save for the said period he was the only white male
detainee held under the Emergency
Regulations at the
prison...."
and later in the same reply:-
"Insofar as Defendants aver that any conduct
31
on the part of the employees of First Defendant was lawful, such conduct was
empowered by and took place in terms of and pursuant
to the relevant and
applicable provisions of the following enactments:-
(i) the Prisons Act, No 8 of 1959 (as amended; (ii) the Prisons Regulations
promulgated under Government Notice No R2080 of 31 December
1965 (as amended
from time to time) pursuant to and in terms of the provisions of Section 94 of
the Prisons Act; (iii) Regulation
R106 published in Government Gazette No 10805
of 26 June 1987; (iv) the Prison Emergency Regulations published in Government
Gazette
No 11341 of 10 June 1 988 under Regulation
R98."
The way has now been cleared for a
consideration of the questions (J ) whether the conditions under which the
plaintiff was held amounted
to an infraction of the plaintiff's basic rights,
and, if so (2) whether the defence of statutory justification was
established.
Black's Law Dictionary 5 ed. at 1249
gives
32
the following definition of "Solitary confinement":-
"In a general sense, the separate confinement of a prisoner, with only
occasional access of any other person, and that only at the
discretion of the
jailer. In a stricter sense, the complete isolation of a prisoner from all human
society, and his confinement in
a cell so arranged that he has no direct
intercourse with or sight of any human being, and no employment or
instruction."
Solitary confinement in the stricter sense
indicated
in the above definition is recognised in
various provisions of the Correctional Services Act 8 of
1959 and the Prisons Regulations, but it is invariably
made subject to very careful limits particularly in
regard to the duration thereof, and the necessity for
safeguarding the prisoner's health is emphasised. A
prisoner found guilty by a commissioned officer of a
contravention of the prison regulations is liable to any
of the four different forms of punishment prescribed in
paragraphs (a) and (c) to (e) of sec 54(2) of the Act.
33
Paragraph (e) provides for solitary confinement in an isolation cell, with
full diet, for a period not exceeding thirty days. Prison
Regulation 101(2)
provides that a prisoner shall not be subjected to solitary confinement if the
medical officer certifies that it
will be detrimental to the prisoner's physical
or mental health. In terms of sec 78 the Commissioner may in respect of
convicted
prisoners order their complete segregation (not deemed to be solitary
confinement imposed as a punishment) in certain defined circumstances;
but in
terms of sec 78(3) such complete segregation shall not be ordered or enforced if
the medical officer certifies that it "would
be or is dangerous to the
prisoner's physical or mental health." In terms of sec 80(1) a person who
displays tendencies towards violence
or escape may be confined in an isolation
cell as often "and as long as it is urgently
34
and absolutely necessary to secure or restrain him." (Emphasis added.) Sec
80(5) provides that if it is considered "absolutely necessary"
to continue such
confinement in an isolation cell for longer than one month the head of the
prison shall report accordingly to the
Commissioner who may thereafter order an
extension for two additional months; but no such confinement shall exceed three
months without
an order under the hand of the Minister. See further the
provisions of Prison Regulation 118.
In the instant case there was not complete isolation of the plaintiff from
all human society. He was permitted occasional and limited
access to other
persons. The plaintiff was nevertheless subjected over many months to a
substantial degree of isolation. Having regard
to the evidence already outlined
there can be no quarrel with the description of the plaintiff's
35
situation (in the aforementioned letters by Hardcastle to Munro) as being one
of "effective solitary confinement". In response to
a question from this court
during argument counsel for the defendant had difficulty in suggesting any more
accurate characterisation
of the constraints under which the plaintiff was
held.
Man is by nature a social animal whose well-being depends upon his
association with others. Recluses who voluntarily seek seclusion
are known, but
they are the exception to the rule. In most people the gregarious instinct is
strongly implanted; and to deprive the
average person of contact with his
fellows is to cause him to suffer anguish of mind. It cannot be gainsaid that
any enforced and
prolonged isolation of the individual is punishment. It is a
form of torment without physical violence. This fact has been recognised
since
the beginning of time, and it is
36
mirrored in the Correctional Services Act and the Regulations thereunder.
One of an individual's absolute rights of personality is his right to bodily
integrity. The interest concerned is sometimes described
as being one in corpus,
but it has several facets. It embraces not merely the right of protection
against direct or indirect physical
aggression or the right against false
imprisonment. It comprehends also a mental element. For present purposes a
convenient summary
of the position is to be found in W A Joubert's Grondslae van
die Persoonlikheidsreg (1953) at 131:-
"(1) Die reg op fisiese integriteit
Die geobjektiveerde regsgoed is hier nie die liggaam in die gewone konkrete
sin van die woord nie, maar die hele fisies-psigiese kant
van die
persoonlikheid. Die mens het onder
hierdie hoof 'n persoonlikheidsreg t a v :
die liggaam, waardeur hy beskerm word teen enige fisiese aantasting
37
daarvan, hetsy deur gewelddadige besering, hetsy op meer indirekte wyse soos
deur die toediening van gif, die veroorsaking van fisiese
skokke, ens.;
onafskeibaar van die voorgaande, die gesondheid in volle omvang, insluitende
die verstandelike welstand;
die liggaamlike vryheid, sodat hy beskerm word nie net teen gevangehouding
nie maar ook teen enige belemmering van die bewegings-en
handelingsvryheid;...."
In my view the evidence to which reference
has
earlier been made amply demonstrates that the
detention
to which the plaintiff was subjected during his
detention
constituted an infraction of his basic rights.
Such segregation involved an aggression upon his
absolute right to bodily integrity; and in particular
it represented a trespass upon and violation of the
plaintiff's right to mental and intellectual well-being
- the right to which, in the quotation above, Joubert
38
refers as "die verstandelike welstand." It remains to consider whether in
terms of the relevant penal enactments the prison authorities
were entitled so
to treat the plaintiff.
The plaintiff was neither a convicted nor an awaiting-trial prisoner. He had
been detained in terms of the relevant emergency regulations
which provided for
detention where it was considered necessary for the safety of the public, or for
the safety of the detainee, or
for the termination of the state of
emergency.
39
In regard to the plaintiff's main
complaint
(effective solitary confinement) the
defence of
justification raised by the defendant hinged on the
provisions
of Prison Emergency Regulation 3, ("PE reg
3") which reads as follows:-
"3. As far as it is practicable in the opinion of the head of a prison (with
due regard to any disciplinary, control, security and
other measures taken for
the effective administration of the prison) detainees shall be segregated from
sentenced and other categories
of unsentenced prisoners in the prison."
The plaintiff's case was that in causing the plaintiff
to be isolated as aforementioned Geldenhuys, as head of
the prison, failed properly to exercise the discretion
entrusted to him and that he did not apply his mind to
those matters proper for his consideration. The gist
40
of the plaintiff's case was summed up thus by the trial
judge (at 117B-E):-
"In effect plaintiff contends that the prison officials, particularly
Geldenhuys, abdicated their discretion in favour of the security
branch of the
South African Police who were allowed to dictate the conditions of plaintiff's
detention; the discretionary powers
conferred upon the head of the prison were
in substance exercised by the security branch; the head of the prison did not
merely consult
the security branch but acted obediently to the directions of the
security branch without exercising his own discretion. Further,
so it was
contended, the prison officials failed to apply their minds to the matter by
adopting rigid policy considerations which
they blindly followed, particularly
with regard to what was meant by segregation in the context and to whether in
plaintiff's case
segregation was practicable or not.
It was also submitted that plaintiff was held in isolation in breach of a
fundamental right where this was not authorised by legislation
and that the
isolated manner of plaintiff's incarceration was so grossly unreasonable as to
be indicative of a failure by Geldenhuys
and the other officials to apply their
minds to the matter."
In support of the plaintiff's
case as outlined
41
above there testified the plaintiff himself, his father and two
representatives from the firm of attorneys representing him. In the
course of
the evidence on both sides there was explored in detail the correspondence which
had passed between the plaintiff's attorneys
and the security branch; between
the plaintiff's attorneys and the prison officials; and, last but not least,
between the prison
officials and the security branch.
The case so advanced by the plaintiff was disputed by the defendant whose
main witnesses were Brigadier Munro, Major Crous, Major
Voigt and Major
Geldenhuys. In the oral evidence it was sought to establish that the isolation
of the plaintiff followed upon a decision
properly taken by Geldenhuys, as head
of the prison, under PE reg 3. The plaintiff's assertions that the prison
officials had simply
obeyed the
42
instructions of the security branch were warmly
repudiated by the
defendant's witnesses.
The trial judge formed a favourable impression
of
the testimony on behalf of the plaintiff, which he
found was supported by the
correspondence put in at the
trial. In this regard the learned judge recorded
(at
131D-E) the following findings:-
"I find the veracity of plaintiff and those who testified on his behalf,
namely his father - and the two legal representatives, Corbett
and Hardcastle,
to be unimpeachable. In any event much of what they testified to is supported by
contemporaneous documentation. Where
there is a conflict between the evidence
adduced on behalf of plaintiff and that adduced on behalf of first defendant, I
prefer the
former."
In my judgment nothing has been shown which would
entitle this court to doubt or distrust the correctness
of the trial court's credibility findings. Indeed, a
perusal of the record satisfies me that the learned
judge's assessment of the witnesses and their
43
reliability was sound. Here I should mention that in regard to various
crucial issues the version given by the plaintiff's witnesses
was not challenged
in cross-examination. A single but striking illustration will here suffice. On 3
August 1988 Hardcastle wrote
to Munro seeking permission for the plaintiff to be
held together "with other de facto political security prisoners in the prison".
On 16 August 1988 a meeting between Munro and Hardcastle took place. According
to Hardcastle's testimony he was on this occasion
told by Munro that the latter
was personally sympathetic to the application for such permission, but that he
was bound by the attitude
of the security police. In his letter of 25 August to
Munro Hardcastle was at pains to record precise details of the earlier
discussion
between him and Munro. The letter stated, inter alia:-
"We confirm and record that you said that although you were in favour of the
application
44
you could not accede to the requests .... because of the attitude of the
security police. You added that .... the decision with regard
to our client's
request was effectively in the hands of the security police. The writer then put
it to you that it was his view that
the security police were effectively
exercising a power of veto with regard to your discretion. During the course of
the meeting
you agreed that this in fact was the situation, and that, although
you did not feel comfortable about this, your hands were tied
by what you
described as the policy of the Prisons Department in this
regard."
Hardcastle concluded his letter with the
statement that
"unless appropriate steps are taken to rectify the
unlawful
exercise of your discretion within five days"
legal steps would be taken
against him.
The only written response by Munro to the
very
pointed recriminations set forth in
Hardcastle's letter
was a denial that the plaintiff was being held in
isolation. Counsel for the defendant pressed on us an
argument that since Hardcastle had threatened legal
45
action, further written comment by Munro at that stage would
have been superfluous. The argument is untenable. Munro was a high-ranking
officer in the Prison Service. In any circumstances, so I consider, Hardcastle's
letter called for a proper and full reply. The fact
of the threat of legal
action heightened the need - if Hardcastle's letter contained substantially
untrue allegations - for the prison
authorities to set the record straight.
Despite the fact that ' Hardcastle's evidence as to what Munro had told him on
16 August
1988 was left unchallenged in cross-examination, when Munro came to
testify he denied having said what Hardcastle had attributed
to him. In these
circumstances it is clear that King J (at 122E) rightly rejected Munro's
denial.
Upon a consideration of all the evidence, but more particularly the
correspondence between the prison
46
officials and the security branch, the trial court
found (at 123B-C):-
"....that it was the security police who were taking the decisions with
regard to whether or not plaintiff was to be held in isolation."
Paying due regard to the forcible argument presented by
counsel for the defendant on this part of the case I am
not persuaded that the court below erred in so finding.
Indeed, it appears to me that the finding was correct.
- The tenor and
drift of the correspondence is revealing.
In response to a letter on behalf of Geldenhuys in which
the security branch was invited to state its views
concerning the request that the plaintiff should be held
with others there came, in a letter dated 5 September
1988, the curt response that the provisions of P E reg 3
are peremptory ("gebiedend") and:
"....hierdie kantoor is derhalwe nie by magte om enige wysiging daarvan toe
te laat nie en die aangehoudene moet dienooreenkomstig
ingelig word."
47
(See the judgment at 122F-J). No less significant (see the judgment at
123A-B) is the document indicating that Munro reported to the
staff-officer of
the Commissioner of Prisons that "Navraag is gedoen by die SAP (VP) of
aangehoudene Hofmeyr saam met ander ongevonniste
gevangenes aangehou mag word."
(Emphasis supplied.)
The matter does not end with what King J accurately described (at 123C) as an
"attitude of subservience to the dictates of the security
police." Geldenhuys
testified that he and he alone took the decision to keep the plaintiff
segregated as he was. To the extent that
Geldenhuys may himself have so decided
it is necessary to consider in how far, if at all, he acted in pursuance of P E
reg 3. A perusal
of the evidence of this witness in my view clearly establishes
(as the trial judge found at 123G) that Geldenhuys failed to apply
his mind to
the matters which, in terms
48
of P E reg 3, he was legally obliged to direct his mind. In fact it is
obvious (as the trial court further found at 124H) that Geldenhuys
had no real
inkling of the nature of the discretion thus entrusted to him.
Before
examining the effect of his evidence it is necessary to say something of
Geldenhuys's qualities as a witness. In the course
of his judgment King J (at
125E) described him as having been "hesitant and diffident and uncomfortable in
the witness box." A reading
of the record of his evidence shows, in my opinion,
that Geldenhuys was an unsatisfactory and evasive witness whose recollection
of
the leading events was poor and patchy. His reluctance to answer his
cross-examiner and his imperfect memory are illustrated by
the following two
extracts taken from his evidence. On 27 June 1988 the plaintiff had applied in
writing to the prison officials
for permission to have a radio in
49
his cell. On 14 July 1988 the plaintiff's application
was forwarded to the
security branch "vir u aanbeveling
en bevordering indien nodig." By letter dated 5
September 1988 (see the judgment at 123C-E) Geldenhuys
was informed by the
security branch that the plaintiff's
application "is met Veiligheidshoofkantoor bevorder en
is afgekeur Geliewe die aangehoudene
dienooreenkomstig in te lig. " On 15 September 1988
Geldenhuys duly informed the plaintiff that his
application to have a radio had not been approved. In
this connection I quote from his cross-examination the
following question and answer:-
"U wou wag totdat u 'n antwoord kry van die Veiligheidstak voordat u vir horn
gese het ....dat die versoek afgekeur iSy nie waar nie?
Nee, ek glo nie, maar dit kan ook moontlik
wees, ek weet nie. Ek kan nie meer onthou nie."
On 15 September 1988 Geldenhuys also complied with the
request of the security branch (conveyed to him in
50
another letter also dated 5 September 1988, to which
reference has already
been made) that the plaintiff
should be informed of the outcome of his application to
be held with
others. In this connection I quote from
his cross-examination the following
questions and
answers:-
"Maar u getuienis was dat u het voor ontvangs van hierdie brief [van 5
September] die besluit gemaak in verband met die
afsondering?--- Dit is korrek, ek het so
getuig, ja.
Nou moet die vraag ontstaan waarom u dit nodig geag het om die eiser op hierdie
datum, die 15de September, in kennis te stel in verband
met die afsondering? --- Nee, U Edele, ek kan
nie meer onthou nie.
U sien, die afleiding wat ek
maak .... is, dat u gewag het vir die ontvangs van hierdie antwoord van die
Veiligheidspolisie en na
ontvangs van hierdie brief was die posisie vir u
duidelik en u het derhalwe vir die eiser in
kennis gestel?---Nee, U Edele, ek glo nie
dit was my bedoeling gewees nie.
Maar u kan nie dink hoekom u die eiser in kennis gestel het op hierdie datum?
--- Nee,
51
ek kan nie onthou nie."
In regard to the provisions
of P E reg 3 the testimony of Geldenhuys may be reduced to the following: (1)
the word "segregated" to
him signified "completely segregated"; (2) he had
regard only and exclusively to the concluding words "detainees shall be
segregated
from sentenced and other categories of unsentenced prisoners in the
prison"; and (3) he did not consider at all the feasibility of
segregating the
plaintiff "with due regard to the various measures taken for the effective
administration of the prison." Geldenhuys
was constrained to confess his total
inability to envisage any sort of situation in which the segregation would not
have been practicable.
He went further. He said that he would have segregated
the plaintiff even if he had not considered it practicable.
It need hardly be said that in the effective
52
administration of a South African prison the health of
the prisoners is a
matter of the highest importance.
Munro readily and properly conceded that it
was the duty
of the prison to ensure that there should be no
deterioration
in the health of a prisoner during his
detention; and that the plaintiff's
psychological and
physical well-being related directly to effective prison
administration. In this connection King J (at 124G-H)
recorded as his finding that Geldenhuys
"....did not apply his mind to the question whether, having regard to the
plaintiff's status as a detainee and having regard to plaintiff's
health and to
the undesirability of total segregation, some form of segregation less than
complete segregation should have been implemented
in due conformity with reg
3."
In my view the evidence amply supports the
above
finding. I would also express my agreement with the way
in which the learned judge summed up (at 125B-D) the
essential facts on this part of the case. He said:-
53
"It is in my view clear that Geldenhuys adopted an inflexible approach that
where it was practicable (as he understood the term)
detainees were to be
totally isolated from other prisoners, regardless of the particular
circumstances of the individual, having
regard to his health and welfare and
also regardless of the fact that where fortuitously there was at any time only
one detainee
of a particular gender and ethnic group, his segregation would
amount in effect to solitary confinement.... he regarded his hands
as being tied
by the regulation. It seems clear that he did not properly or indeed at all
exercise a discretion, as he should have
done."
The uncompromising stance adopted by
Geldenhuys
probably stemmed from a belief on his part
that the segregation of detainees
in P T reg 3 had a
punitive purpose. Such a belief seems to me to
be
groundless. Reg 3 of the Emergency Regulations
promulgated under the Public Safety Act 3 of 1953
provided for preventive arrest and detention. P E reg
3 must be regarded, so I consider, as having been
enacted primarily in the interests of the detainees
]
54
themselves. Its object was to protect detainees from unwholesome exposure to,
and enforced association with inmates of the prison
whose criminal character was
either known (sentenced prisoners) or suspected (awaiting-trial prisoners.)
Both in the court below and on appeal counsel for the defendant sought to
underpin the defence of statutory justification by reference
to two enactments
which Geldenhuys himself had neither considered nor invoked. These are
respectively Security Emergency Regulation
3(8) and Prison Regulation 132(2). In
his judgment King J set forth the terms of the former at 125G-H, and of the
latter at 126D.
In my view neither enactment can be used to bolster up the plea
of justification. The object of Security Emergency Regulation 3(8)
was plainly
to insulate a detainee from the outside world. I agree with the conclusion of
the
55
court below (at 125J - 126A) that it governs the matter of access to a
detainee by persons from outside a prison; and that it has
nothing to do with
the segregation of detainees within a prison. I would respectfully disagree with
the contrary views (summarised
by King J at 127B-C) which were expressed by
Preiss J in Molobe v Minister of Law and Order in an unreported judgment
delivered in
the Witwatersrand Local Division on 17 February 1988. Prison
Regulation 132(2) is discussed by King J at 126D - 127E of his judgment.
For the
reasons stated by the learned judge I agree that it has no relevance at all to
the present case.
The plaintiff's six ancillary complaints have been listed earlier in this
judgment. The third of these (the failure to allow the plaintiff
regular
newspapers and foodstuffs from outside the prison) and
56
the sixth (the failure to allow the plaintiff reasonable
access to a
television set or to video screenings) were
held by the court below (see
129E; 130I) not to involve
unlawful conduct on the part of the prison
officials
concerned. In the case of the fourth ancillary
complaint (the
failure to allow the plaintiff to write
and receive more than two letters per
week) the learned
judge held (at 129I) that inasmuch as the plaintiff's
written application
for an increase in the number of
letters was granted, the basis of the complaint was
removed. It follows that nothing more need here be
said of the third, fourth and sixth ancillary
complaints.
I proceed to deal briefly with the remaining three complaints, each of which
was carefully examined by King J in the course of his
comprehensive judgment.
The first ancillary complaint (the failure to allow the
57
plaintiff to exercise indoors when the weather did not
permit outdoor
exercise) was based upon non-compliance
with Prison Emergency Regulation 6.
It is dealt with
at 127F - 128E in the judgment of the court below.
For
the reasons there set forth I find myself in
agreement with the following
conclusion (at 128 D-E) to
which the trial judge was driven:-
"It is quite clear that Major Voigt did not have regard to the provisions of
Prison [Emergency] Regulation 6 but rigidly applied
a prison policy without
regard to plaintiff's particular circumstances.
The failure to afford plaintiff a proper opportunity to exercise indoors either
outside his cell and/or in the gymnasium was in my
view wrongful and
unlawful."
The second ancillary complaint (the
failure to
allow the plaintiff books and magazines, other than
study materials, from outside the prison) was considered
by the court a quo at 128 E-J. Pointing out that this
privation had to a limited extent been allayed by the
58
fact that the plaintiff was allowed use of the prison library, the learned
judge nevertheless held (at 128J) that the total ban on
books and magazines from
outside the prison was unlawful. For the reasons advanced by him I agree with
his conclusion.
The fifth ancillary complaint was based (a) on the fact that, except for the
last few weeks when he was in the prison hospital, the
plaintiff had no access
to the centrally broadcast system; or alternatively (b) on the refusal to allow
the plaintiff to have an
FM radio in his cell. As already mentioned, the
centrally broadcast system was out of order in the plaintiff's cell during the
entire
period of his occupancy of it. The evidence points to no particular
dereliction on the part of the prison authorities in this regard.
The facts in
regard to the refusal of the plaintiff's written application for a portable
radio have been
59
mentioned earlier in dealing with certain parts of
Geldenhuys's evidence.
The court below dealt with this
matter at 130B - C. From the evidence of
Geldenhuys as
a whole it is clear, in my opinion, that he
misunderstood
the scope of Prison Emergency Regulation
2(3) which merely prevents a detainee from securing a
radio from outside the prison. One is here concerned,
however, not merely with his mistaken view of the legal
position. I agree with the conclusion reached (at
130E) by the learned judge:-
"It is not so much that Geldenhuys misapplied the regulation; he did not
exercise a discretion at all, but left this to the security
police. This was
unlawful."
The defendant's case was that the various
conditions
of detention visited upon the plaintiff
flowed from the exercise of a proper discretion by the
prison officials concerned. In this connection King J
reminded himself (at 131 C-D) that the ipse dixit of an
60
administrative official exercising a discretion is not
decisive; and that
the legitimacy of the latter's actions
had to be tested against all the
available evidence. King
J stated (at 131 F-G) his final conclusions in
the
following words:-
"If there is an onus on plaintiff to show a failure to exercise discretion, he
has in my view - in the respects outlined above -
satisfied it.
I thus hold that the segregated manner in which plaintiff was detained for the
bulk of his period of detention, the fact that he
was not allowed some form of
indoor exercise, that he was not allowed access to books and magazines from
outside the prison and that
he was not allowed some form of access to radio
broadcasts constitute wrongful and unlawful conduct as. alleged by
plaintiff."
I find myself, with respect, in general
agreement with all of the remarks just quoted. For the sake of clarity and
completeness, I
would venture two further observations thereon.
The first concerns the status properly to be
61
assigned to those ancillary complaints which the trial
court held to be
valid. In his judgment in the Goldberg
case (supra) Corbett JA, having stated
the residuum
principle, followed it up by noting (at 39 F-G) the
following caveat:-
"I would emphasize the use of the words 'basic' and 'denied' in this connection
because I do not wish to convey the impression that
every alleged infraction of
a prisoner's rights should be allowed to be a cause for legal action. If that
were permitted, the position
of the prison authorities could become intolerable,
and the proper- administration of gaols exceedingly difficult. In terms of the
regulations prisoners who have complaints about their treatment in gaol are
given the opportunity to voice them and the regulations
also prescribe how such
complaints are to be dealt with (see reg 103 and also reg 104). This should be
the remedy for complaints
not amounting to a denial of basic
rights."
In the present matter the central core of
the
plaintiff's case is his enforced isolation. It is
unnecessary, I consider, to decide whether the deprivations
suffered by the plaintiff in regard to lack of indoor
62
exercise, the ban on books and magazines, and the absence
of a portable
radio in his cell were of such a nature that,
either singly or cumulatively,
they would have supported an
action for damages based on injuria. Such an
inquiry
would represent an artificial exercise. Essentially these
three
deprivations underscored and exacerbated the
hardships and tribulations of
effective solitary
confinement. This was, correctly so I think, the view
adopted by King J. In argument in the court below a
suggestion on behalf of the plaintiff was made (see the
judgment at 135 I-J) that in its quantification of damages
separate amounts should be allocated by the trial court
under the head of each of these deprivations. The learned
judge declined to do so and instead he awarded a lump sum.
He remarked (at 136A):-
"By far the major component of plaintiff's
damages relates to the fact of. his segregation.
The other factors in respect whereof I have found
in
plaintiff's favour really constitute
63
circumstances which aggravated the solitariness of plaintiff's
situation."
The second observation I
wish to make concerns
the burden of proof in relation to the legality or
otherwise of the
conditions of the plaintiff's detention.
In determining whether or not the
prison officials had
exercised a proper discretion the trial judge (at 131F)
was
prepared to assume in favour of the defendant that in this
regard the
plaintiff bore the burden of proof. Even on
that assumption King J found in
favour of the plaintiff.
Although I am satisfied on all the evidence that
the
failure to exercise a proper discretion was in fact
established on a balance of probabilities, I wish to state
briefly what I consider to be the position in regard to the
onus on this issue. Both in the court below and on appeal
it was contended on behalf of the plaintiff that the burden
of proof lay with the defendant. In my opinion that
submission is correct.
64
The plain and fundamental rule is that every individual's person is
inviolable. In actions for damages for wrongful arrest or imprisonment
our
courts have adopted the rule that such infractions are prima facie illegal. Once
the arrest or imprisonment has been admitted
or proved it is for the defendant
to allege and prove the existence of grounds in justification of the
infraction.
The detention to which the plaintiff was
subjected constituted an infraction of his basic rights,
and, in particular, of his right to bodily integrity. For
purposes of the present appeal I find it unnecessary to say
anything more in regard to onus than that I respectfully
agree with the approach adopted by E M Grosskopf JA in
During NO v Boesak and Another 1990(3) SA 661 (A). In the
course of his judgment the learned judge of appeal said (at
673 G-H):-
"Wat ek hier veral wil beklemtoon is die beginselstandpunt dat,
as 'n saak van beleid, dit
65
reg en billik is dat 'n persoon wat inbreuk maak op die vryheid van die individu
die bewyslas behoort te dra om te bewys dat sy optrede
regmatig
is."
And again (at 674 B-C):-
"Dit kan tog nie gesonde regsbeleid wees dat 'n
persoon ingekerker bly hoewel 'n geregshof meen dat daar 'n gelyke kans is dat
sy inhegtenisneming te kwader trou geskied het nie.
Dieselfde oorweging geld
waar die hof onseker is of die arresteerder sy aandag behoorlik toegespits het
op die vraag of die inhegtenisneming
nodig was vir die gemelde doeleindes. Dit
druis in teen 'n
mens se billikheidsgevoel dat 'n persoon in aanhouding moet bly waar 'n hof nie
oortuig is (op
'n oorwig van waarskynlikhede) dat die persoon wat die aanhouding gelas het,
behoorlik aandag aan die saak gegee het
nie."
Substituting "alleenopsluiting" for
"aanhouding" in the
abovequoted passage, the same considerations of- legal
policy and justice seem to me to point to the conclusion in
the instant case that the defendant bears the onus of
proof. This view of the incidence of the onus is, I think,
no more than a corollary of the residuum principle.
In fairness to the prison officials responsible
66
for the conditions under which the plaintiff was detained it is necessary to
state that there was not the faintest suggestion at the
trial that any of them
was actuated by any feeling of spite or ill-will towards the plaintiff. Indeed,
the trial judge properly recorded
his impression (at 132F) that no hostility had
been displayed towards the plaintiff and that, when allowance was made for " the
circumscribed
limits" within which the prison officials believed they had to
act, the plaintiff "was shown courtesy and consideration."
This brings me to
a legal issue which arises crisply in the appeal: the mental element on the part
of the wrongdoer which is necessary
to sustain the cause of action on which the
plaintiff relies. The general principles of the modern South African law of
delict are
essentially derived from Roman law. See LAWSA vol 8 page 11 par 6.
Injuria is the wrongful and intentional
67
infringement of an interest of personality. In an action for damages based on
injuria the plaintiff must prove intent (dolus, animus
injuriandi) on the part
of the defendant. Intent and motive, however, are discrete concepts. As pointed
out by Stratford JA in Gluckman
v
Schneider
1936 AD 151
at 159 "Motive...is the actuating
impulse preceding intention." Intention is a reflection of the will rather
than desire. The pertinent difference between the two concepts
was stressed in
the Whittaker case (supra). At 131 of his judgment Solomon J stated: "It is not
necessary in order to find that there
was an animus injuriandi to prove any
ill-will or spite on the part of the defendants towards the plaintiffs...."
Earlier in his
judgment (at 129) the learned judge of appeal remarked that he
did not for one moment doubt that defendants had acted bona fide.
Dolus encompasses not only the intention to
68
achieve a particular result, but also the consciousness that such a result
would be wrongful. See: Dantex Investment Holdings (Pty)
Ltd v Brenner and
Others NNO 1989(1) SA 390(A) at 396 E, and the cases there cited. On behalf of
the defendant it was strenuously
submitted that in the present case, even if the
infringement of the plaintiff's personality rights was objectively
unjustifiable,
the plaintiff's action should nevertheless have failed for the
reason that there was no consciousness of the wrongfulness of the
conduct in
question; and hence no animus injuriandi. Dolus was excluded, it was said, by
reason of the ignorance on the part of the
prison officials of the wrongful
character of their acts which injuriously affected the plaintiff. For the
reasons which follow I
am unable to accede to this argument.
It is clear that without dolus the action for an injuria would lie neither in
Roman law nor in Roman-Dutch
69
law. See the remarks of Davis J in Wade & Co v Union Government
1938 CPD
84
at 86. It is equally clear, however, that in a limited class of injuriae the
current of precedent has in modern times flowed strongly
in a different
direction. In this limited class of delicts dolus remains an ingredient of the
cause of action, but in a somewhat
attenuated form in the sense that it is no
longer necessary for the plaintiff to establish consciousness on the part of the
wrongdoer
of the wrongful character of his act. Included in this limited class
are cases involving false imprisonment and the wrongful attachment
of goods.
The possibility that in the case of certain forms of injuriae involving
constraints on personal liberty the wrongdoer's legal liability
might exist even
in the absence of his appreciation of the wrongful nature of his injurious act,
has been explicitly recognised by
this court. In
70
Ramsay v Minister van Polisie en Andere 1981(4) SA 802(A)
Botha AJA (with
whom the remaining members of the court
concurred) agreed with the order
appearing at the end of
the judgment of Jansen JA but was at pains to dissociate
himself from certain observations in regard to
animus injuriandi in the judgment of Jansen JA. At 818
E-H Botha AJA said the following:-
"Hy aanvaar, na aanleiding van die posisie by laster, dat animus injuriandi, wat
onregmatigheidsbewussyn verg, in die algemeen 'n
element is van alle inbreuke op die persoonlikheid wat as injuriae aangemerk
word. Ek aanvaar dit nie. Ek laat die moontlikheid oop
dat daar by bepaalde
vorme van injuria na die else van die regsbeleid aanspreeklikheid kan bestaan in
die afwesigheid van onregmatigheidsbe-wussyn
by die dader. In der waarheid word
my benadering onderskraag deur die huidige stand van die regspraak. Dit val nie
te betwyfel nie
dat daar in die regspraak, veral in die Transvaai, oor 'n
tydperk van jare met betrekking tot seker vorms van injuria 'n standpunt
ingeburger is wat beteken dat by sekere injuriae onregmatigheidsbe-wussyn by die
dader geen voorvereiste vir aanspreeklikheid is
nie. Ek hoef nie daaroor op
besonderhede in te gaan nie. By wyse van enkele voorbeelde verwys ek slegs na
Birch v Ring 1914
71
TPD 106
; Cohen Lazar & Co v Gibbs
1922 TPD 142
; Smith v Meyerton Outfitters
1971(1) SA 137(T)."
In the Cohen Lazar case (supra)
a court messenger, on the
instructions of a creditor who had no judgment,
seized
property of the debtor. A full court (Wessels JP and
Gregorowski J)
held that the seizure was an injuria. In
the course of his judgment Wessels
JP said at 144:-
"The mere illegal and intentional interference , with the liberty of a free
man by seizing him or his property is a delict which will
support an action for
damages."
And later in his judgment at 145:-
"it is revolting to one's common sense to think that a person unsupported by any
judgment could induce a clerk to issue to him a
writ, seize a person's property,
and escape liability merely because he acted without malice and under the
impression that no judgment
was required. If a person by his own unauthorised
act intentionally injures an innocent person in his property, the latter is
prima
facie entitled to damages for loss caused to
him."
Smit v Meyerton Outfitters (supra), which
involved a claim
based on an illegal arrest of the plaintiff by the
72
messenger of the court, was also a decision of the full
bench. The case of
Cohen Lazar (supra) was followed. At
139 C-D the following was said:-
"In die geval van die actio injuriarum net die skuldbegrip met twee oorwegings
te make. Die eerste is dat die verweerder opsetlik
(intentionally) gehandel het
en die tweede is dat hy geweet het dat die handeling onregmatig is. In die geval
van onregmatige arrestasie,
hoewel dit uit die actio injuriarum ontwikkel het,
is die tweede oorweging nie 'n vereiste vir aanspreeklikheid
nie."
I have cited the majority
judgment in the Ramsay
case (supra) as an example of recognition by this court of
the fact that in cases involving the liberty of the citizen
there may be liability for an injuria despite the
wrongdoer's unawareness of the wrongful character of his
act. No less significant, however, is the line of
reasoning adopted by this court more than eighty years ago
in the Whittaker case (supra). The same recognition,
although not roundly expressed, is, I think, implied in the
73
decision in the Whittaker case. It is clear from the
judgments delivered
therein that dolus was predicated as an
essential element of the injuria with
which the court was
concerned. Innes J in the course of his judgment (at
122)
put the matter thus:-
"I agree with WESSELS J [who delivered the judgment of the court below] in
holding that the illegal treatment to which the plaintiffs
were subjected
amounted to a delict on the part of those responsible for it. And I think the
delict was of the class dependent upon
intent (dolus); in other words, that it
constituted an injuria. The action of the Governor was a wrongful and
intentional interference
with those absolute natural rights relating to
personality, to which every man is entitled."
and
again at 124:-
"I have already pointed out that the infringement of the rights of these persons
amounted to an injuria; a necessary feature of which
is the existence of dolus,
or intent. But when an unlawful aggression of this nature has been proved, the
law presumes that the aggressor
had in view the necessary consequence of his
conduct; that is, that he had the intention to injure, the animus injuriandi (De
Villiers,
Injuries, p 145). That does not mean that he was actuated by
malice
74
or ill-will, but that he deliberately intended that the operation of this
unlawful act should - have effect upon the plaintiff."
Turning to the judgment of Solomon J one finds the
following remarks at 130-1:-
"It seems to me that we have present here all the requisites which are necessary
to found an action of injuria. Those requisites
are well laid down by De
Villiers in his work on the law of injuries as follows: First: 'An intention on
the part of the offender
to produce the effect of his act'; in other words, the
animus injuriandi. It is not necessary in order to find that there was an
animus
injuriandi to prove any ill-will or spite on the part of the defendants towards
the plaintiffs; and it is quite immaterial
what the motive was or that the
object which the defendants had in view was a laudable one. It is sufficient
that the injuries suffered
by the plaintiffs were inflicted by the defendants,
not accidentally or negligently, but with deliberate
intention."
Neethling,
Persoonliksheidsreg 2nd ed (1985) says
at p 116:-
"Alhoewel onregmatige vryheidsberowing 'n injuria is waarvoor animus
injuriandi 'n aanspreeklik-heidsvereiste behoort te wees, het
die regspraak
onder invloed van die Engelse reg hierdie
75
vereiste feitlik geheel en al negeer." In amplification of the above
statement the learned author in footnote no 11 on the same page
points out that
in the Whittaker case (supra) at 122 and 130-1:-
"....dolus of animus injuriandi onomwonde
as
vereiste vir onregmatige vryheidsberowing gestel
word. Nietemin is die verweerders aanspreeklik gehou nieteenstaande die feit dat
hulle bona fide geglo het dat hulle optrede geregverdig was (vgl - op 129) en
opset weens gebrek aan onregmatig-
heidsbewussyn bygevolg by hulle ontbreek
het...."
Having referred to the decision in Smit v
Meyerton
Outfitters (supra) Prof Neethling comments:
"Die opsetselement, onregmatigheidsbewussyn, en by gevolg dwaling as 'n verweer
word dus -uitdruklik verwerp. Mens kan gevolglik
konludeer dat aanspreeklikheid
op grond van onregmatige vryheidsberowing skuldloos
is."
To which he adds (by way of footnote no 16 on
the same
page):-
"Afgesien daarvan dat hierdie negering van die skuldvereiste aan die invloed
van die Engelse reg
76
toe te skryf is, kom spesiale oorwegings wat sodanige afwyking regverdig
nietemin hier te pas...."
In my opinion the succinct
dictum in Smit v Meyerton Outfitters (supra) quoted earlier in this judgment
embodies a correct statement
of our modern law. The application of the principle
therein stated furthermore entails practical consequences which seem to me to
be
both sensible and just.
The principles of our law of delict which govern the legal liability of a
wrongdoer for the infliction of unlawful bodily restraint,
touching as they do
the liberty of the subject, are principles of vital importance. I do not think
that this court should try to
reverse the direction along which our law has
developed as reflected in the line of judicial precedents examined in this
judgment.
To upset an established and satisfactory principle because it is not
in accordance with the Roman or Roman-Dutch law
77
would be to deny development to our law. Law is not a static thing. It is
forever changing and being adapted to novel conditions.
In the Scottish
Juridical Review (1958) 242 at 244 J J Gow writes:-
"....antiquarianism may be a hobby: it cannot be the badge of a living system of
jurisprudence. In the long run the test of what
is good is the test of social
utility, and that applies to any system of law...."
(quoted by Hahlo and Kahn, The Union of South Africa (1960) at p
50).
This truth has long been recognised in South
Africa. In
1909 a Transvaal full bench composed of three future chief
justices of this court (see Blower v Van Noorden 1909 TS
890 at 905) had this to say:-
"There comes a time in the growth of every living system of law when old
practice and ancient formulae must be modified in order to
keep in touch with
the expansion of legal ideas, and to keep pace with the requirements of changing
conditions."
I return to the judgment of King J. Upon a
78
thorough appraisal of all the relevant facts of the case he
considered R50
000 to be an appropriate award of damages.
I see no reason for interfering
with his award. In Hassim
and Another v Officer Commanding, Prison Command,
Robben
Island and Another 1973(3) SA 462(C) Diemont J remarked (at
480 B-C):-
"I can think of few greater hardships than for an active man to be locked up in
a small cell day and night, week after week and month
after month, in enforced
idleness."
With that statement I entirely agree.
In the result the appeal is dismissed with
costs
including the costs consequent upon the
employment of two
counsel.
G G HOEXTER JA
SMALBERGER JA )
F H GROSSKOPF JA ) Concur
GOLDSTONE JA )
NICHOLAS AJA )