IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 2630/2020
In the matter between
NATHANIEL HENDRICKS Plaintiff
AND
MINISTER OF POLICE 1st Defendant
MINISTER OF JUSTICE AND
CORRECTIONAL SERVICES 2nd Defendant
Date of Hearing : 22 May 2025
Date of Delivering : 01 October 2025
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JUDGMENT
__________________________________________________________________
THULARE J
FINDING
(a) The second defendant is liable for the damages sustained by the plaintiff as a
result of the assault on the plaintiff in cell C6D on 8 April 2018 in
Goodwood prison.
(b) The second defendant is liable for the costs on scale B, including the costs
of Professor LM Muntingh.
[1] This is an opposed action for damages instituted by the pla intiff agai nst the
defendants for damages for personal injuries sustained during an assault whilst the
plaintiff was in pre-trial detention in Goodwood Prison. The plaintiff withdrew his
claim against the first defendant. The issues of liability and quantum were
separated, and the court had to determine liability only. The plaintiff testified in
person and led the evidence of an expert witness , Professor Lukas M Munti ngh
(Muntingh). The defendant led the evidence of two of its officers, Kobese and
Simane.
[2] The plaintiff was detained at Goodwood Prison from 18 September 2017 to 26
March 2018. He was a senior member of the 28-prison gang and was on awaiting
trial detainee for a serious violent crime, the murder of Thurston Peterson. Upon
admission at Goodwood, when offered an election, he had chosen to be placed in a
cell with gang members and did not want a cell with non -gang members. This was
in line with his stature in the prison gang culture. He was placed in a cell which
had three prison gang s, to wit, the 26, 27 and 28 gangs. Plaintiff had been in a nd
out of Goodwood prison throughout his life as a gang member and was aware of
prison overcrowding, but still elected to be placed in a cell with alleged dangerous
criminals belonging to rival gang members. The main gang inside the cell was the
28, followed by the 26 . The gangs inside a cell occupy the space in line with the
rank, hierarchy and chain of command. The most junior occupy the space next to
the main entrance, and seniority goes up the deeper you go into the cell. The most
senior rank is at the end of the cell. Because of his seniority, he was very close to
the end of the cell, which end was occupied by Mabra who belonged to the 28, the
same gang as the plaintiff . This put plaintiff closer to the electricity network point
where the kettle was boiled and illegally obtained cellphones were charged . There
are two parallel authorities in a cell . There are the State authority and the gang
authority. Prison gang rules and authority were enforced by violence in the cell and
within the prison . As a senior, he participated in the enforcement of rules throu gh
violence. He was aware of the conditions associated with his detention in a cell
with gang members including the controlled lawlessness in that gangs would
exercise unlawful justice for non-compliance with gang rules.
[3] Goodwood prison employed what they called a privilege package system.
Employees of the defendant assessed the cell in which plaintiff was detained , C6D
and pursuant thereto decided to provide the detainees of the cell with a kettle on 13
March 2018 in accordance with th at system. The kettle was provided to allow the
inmates to prepare food including noodles, instant cereal porridge or to prepare tea
or coffee. Employees of the defendant conducted regular inspections to ensure that
the kettle was safe for use. Higher ranking gang members , including the plaintiff,
controlled the use of the kettle and cigarettes as well as illegally obtained
cellphones and drugs in the cell. In the absence of the legal provision of a kettle,
inmates found other mechanisms of boiling water inside a cell and were known to
construct what is called a bompie , which is a self -made water boiling appliance.
On the date of the incident which gave rise to the claim, there was a disabled
person who shared the cell wherein the plaintiff was detained , who used crutches
person who shared the cell wherein the plaintiff was detained , who used crutches
which were kept in the cell for the benefit of the disabled detainee.
[8] On 8 April 2018 members of his own gang , the 28, led by Mabra, attacked the
plaintiff whilst detaining him in the same cell. The plaintiff was held onto the bed
and his mouth forced open. They poured boiling hot water into his mouth down his
throat and onto his face and body. The boiling water was poured from the kettle
which the defendant had supplied to the inmates to use and had been kept in the
cell. He was also beaten by the metal crutches which were used by a disabled
person who was in the cel l and who was also a 28-gang member. The plaintiff was
also punched with fists. It was members of the rival gang, the 26, who came to help
the plaintiff inside the cell and prevented further injuries to him. A fight ensued
between these two rival gang memb ers in that cell. Kobese was the first
correctional officer to react to what he called chaos in the cell and called for
reinforcements. Upon arrival of reinforcements and the master key Kobese entered
the cell and remove d the plaintiff , who was already injured . Prison officials
brought the fi ght to an end. Plaintiff was taken to the prison hospital for nursing
and transferred to Karl Bremmer hospital for treatment . He was thereafter
transferred to Tygerberg hospital for further treatment where he remained until 30
April 2018 and then transferred back to the prison hospital. Simane explained that
the provision of a kettle in terms of the privilege package system was done on
humanitarian grounds. A detainee makes a request, and the request is considered by
the prison authorities. Once granted , the kettle becomes the responsibility of the
detainee who requested it. Simane could not assist the court on the specifics around
the request and its consideration on the specific kettle under consideration.
Standing Order 2, Chapter 6, Section 1.12
[9] The parties agree on the existence and applicability of this standing order. The
second defendant denied violation of the standing order. The standing order reads:
1.12 It must be ensured that prisoners do not illegally misuse electrical plugs/tapping of power .
Electrical appliances/equipment used for the preparation of food must not be allowed.
Muntingh has a PhD in law and a Masters in Sociology . He has for a number of
years been involved in research around criminal justice reform and has written a
number of peer reviewed material on prison and prison conditions in South Africa
and in Africa including on pre-trial detention, number prison gangs and prisoners’
rights. I accept that Muntingh is an expert, amongst others, on pre-trial detention. I
also accept his observation, citing the Geneva-based Association for the Prevention
of Torture, that the duty of a state includes that prison authorities have a positive
obligation to prevent violence amongst the detainees they are responsible for and
that this responsibility includes the duty of care and the adoption of preventative
measures to reduce the risk o f violence as well as to protect the most vulnerable
detainees. Prison officials have an obligation to prevent inter-prisoner violence. If
they fail to exercise due diligence to prevent inter-prisoner violence, they should be
considered authors, complicit or otherwise responsible for acquiescing in such
violence.
[10] I am persuaded by the observations of Munti ngh with specific reference to
boiling water and electrical equipment in cells. The use of boi ling water by
prisoners was not an extra -ordinarily unknown pheno menon to the prison
authorities. Muntingh points out that boiling water has been noted to be used as a
weapon by prisoners and that its impact as a weapon was significantly intensified
by mix ing sugar into the boiling water which will raise the temperature and
sustaining a higher temperature for longer, resulting in more severe injuries [ Suzy
Gidson, Inmate Throws Boiling Water and Sugar Over Fellow Prisoner ,
LeicestershireLive 28 January 2019; Mawhinney Ja et al, Does Prison Napalm
Work? Measuring the Coolong Temperature of Sugar Solution Burns in a Porcine
Model, Burns: Journal of the International Society for Burn Injuries, 20 September
2021}. Muntingh noted that from the Northern Territories of Australia , it was
reported that prison officials wanted a ban on boiling water imposed after one of
their colleagues was attacked by a prisoner with boiling water [Prison Officers
Want Kettle Ban (ABC News (Australia, 7 December 2011).
[11] The kettle which was in cell C6D contemporaneous with the detention of the
plaintiff in that cell, was in the cell in contravention of the Standing Order 2,
Chapter 6, section 1.12. As Muntingh observed, the provision of the Standing
Order does not enable an explicit deviation. Muntingh suggests two motivations
for the prohibition o f cooking equipment including a kettle , in a cell. The first is
that it may enable unsafe if not illegal connections to electricit y points such as
plugs and light fittings. His opinion is that these connections may plac e the
prison’s electrical system at risk of frequent short circuits. The second is that
boiling water poses a significant risk in a communal cell, be that by accident or
intent to both staff and prisoners. Muntingh noted that awaiting trial detainees are
classified as maximum security and that to allow a high-risk item like a kettle into
a population that has not undergone a thorough risk assessment as provided for in
section 38 of the Correctional Services Act, 1998 (Act No. 111 of 1998) (the CSA)
would be to invite risk. Muntingh made reference to Regulation 26A(2) of the
Regulations issued in terms of the CSA, The Regulation reads as follows:
26A Food and Drinks
(2) Food that needs preparation is not allowed and preserved or canned food may not be brought
into the remand detention facility or the correctional centre, as the case may be.
The reasons for the provision of the kettle to enable the remand detainees to
prepare tea or coffee or instan t meals was clearly in contravention of the
Regulation. The presence of food that needed preparation in Cell C6D was not
allowed by the Regulation.
The Privilege Package System
[12] The second defendant did not plead this privilege package system. It became a
defence which the second defendant elected to develop during the trial. It is
impermissible for a party to plead one defence and then seek to establish a different
case at trial and it is equally impermissible for the court to have recourse to issues
falling outside the pleadings when deciding a case [ Minister of Safety and Security
v Slabbert [2010] 2 All SA 474 (SCA) at 475]. Ordinarily this should be the end of
reliance on the privilege package system . In the light of the importance of the
issue, I deem it appropriate to make some further comments. The Procedure
Manual on Privilege System for Remand Detainees sets out its purpose as follows:
1. Purpose
The Amenities Programme for Remand Detainees and related procedures are aimed at ensuring
that remand detainees have access to their rights along with prescribed privileges during t heir
detention and that DCS personnel have their guidelines on the implementation of these Remand
Detention Facilities.
The CSA defines amenities as follows
1 Definitions
'amenities' means recreational and other activities, diversions or privileges which are granted to
inmates in addition to what they are entitled to as of right and in terms of this Act, and includes-
(a) exercise;
(b) contact with the community;
(c) reading material;
(d) recreation; and
(e) incentive schemes;
As regards food, the Manual provides that no food that needs further preparation
may be received or allowed. The Manual has express provisions which deals with
provisions which were intended to make life more pleasant or comfortable for
remand det ainees, including private music instruments, written or telephonic
communication, visits, exercise and the use of recreational facilities.
[13] I am not persuaded that the Manual was the source of authority to provide a
kettle to remand detainees in contravention of the Standing Order 2 , Chapter 6 ,
section 1.12; Regulation 26A(2) of the Regulations issued in terms of the CSA as
well as the Manuals own prohibition on food that need further preparation. In
clause 17 the Manual made provision to apply to receive personal and recreational
items. The Policy Principle in the Manual in that clause reads:
Affording every RD an opportunity to access prescribed recreational or personal possessions for
recreational purpose/activities. RDs to note such considerations will be at own cost and own risk
of the items requested.
The Commissioner for Correctional Services cannot issue an instruction that
contradicts a Regulation issued by the Minister in Cabinet in terms of the CSA .
The Commissioner cannot legitimately issue an instruction that contradicts his own
prior Standing Order without withdrawing the former . The Commissioner cannot
issue an instruction that contradicts a Regulation issued in terms of the CSA and
his own Standing Order and then pass the risk arising from that illegitimate
instruction to a remand detainee. To the extent that the Manual is interpreted to
authorize the issue of a kettle in an overcrowded cell full of gangsters awaiting trial
for serious violent crimes, where it is known that gangs enforce discipline through
violence, that interpretation renders th ose provisions in the Manual unlawful. The
lawful interpretation of the Manual makes no provision for electrical appliances o r
equipment used for the preparation of food in the cells. The second respondent
cannot rely on the lawful interpretation of the Manual for providing the kettle to
remand detainees inside a cell. The second defendant cannot use the privilege
package system in justifying its provision of the kettle to the detainees in the cell.
[14] There is no record provided by the second respondent that showed that the
Head of Goodwood Remand Detention Facility applied their mind, against the
background of Regulation 26A(2), the Standing Order 2, Chapter 6 section 1.12 as
well as the Manuals prohibition of food th at required further preparation , to the
request to provide a kettle, if any such request was made at all. Prison officials who
testified for the second defendant did not have any knowledge of such application
or its path of travel of consideration leading up to the approval. There is no record
that the Head of Goodwood Remand Detention Facility applied his mind to the risk
of allowing a kettle to facilitate the availability of boiling water in cell C6D, where
gangsters detained for alleged ly committing serious violent crimes were held, as
envisaged in consideration of an application for personal and recreational items in
envisaged in consideration of an application for personal and recreational items in
the Manual, clause 17. In the absence of any record or explanation, the inescapable
conclusion is that the provision of the kettle was negligent, with a deliberate
disregard of the regulatory framework governing electrical appliances/equipment
used for the preparation of food in cells, which is prohibited without any allowance
for deviations.
Relief
[15] The kettle is an electrical appliance or equipment which was provided and
used for the preparation of food which included tea/coffee, noodles and instant
cereals or porridge . The kettle was not lawfully provided to the cell . It was
provided in violation of a Regulation issued in terms of the CSA, the Standing
Order and the Manual on the Privilege Package System. There was no justification
for the provision of the kettle. A barren claim to humanitarian grounds, under the
circumstances, is simply not a cut to size. The Privilege Package System cannot
impermissibly conflict with the provisions of the Act, Regulations and Standing
Orders. The provision of the kettle was inherently dangerous but the second
defendant proceeded to provide it outside the regulatory framework and in the
absence of an assessment. The second respondent has a duty to take steps that are
necessary to ensure the safe custody of every inmate and to maintain security and
good order in every correctional centre [section 4(2) of the CSA]. The second
defendants provision of the kettle, a prohibited item , to high security risk remand
detainees was unlawful. The second defendant did not establish any defence to the
risk it had knowledge of and had appreciation of its ambit but was reckless against
it. The applicant sustained injury in consequence of th at risk. The onus was on the
second defendant to prove tha t provision of the kettle was reasonable and
legitimate [Mabaso v Felix 1981 (3) SA 865 (A) at p 876 E-F]. From the facts, the
provision of crutches to a disabled detainee in the cell was reasonable and
legitimate. The second defendant did not set out facts for his defence on the
provision of the kettle to be upheld [Pillay v Krishan and Another 1946 AD 946 at
p 951 to 952]. In the provision of a kettle, which was prohibited for the security
risk it posed, the prison officials provided it with the foresight of a reasonable
possibility of harm [Mkhatswa v Minister of Defence 2000 (1) SA 1104 (SCA) at
1112H]. There was a legal duty on the prison officials to avoid negligently causing
remand detainees harm [Minister of Safety and Security v Van Duiwenboden [2002]
3 All SA 741 (SCA) at para 12]. The prison officials ought reasonably and
practically to have prevented harm to the plaintiff . Failure to do so constituted
wrongfulness on the part of the second defendant [Minister of Justice and
Correctional Services v Jahmal at para 44]. The policy and the legal convictions of
the community, even within the context of the advancement of prison er rights,
constitutionally understood, do not regard provision of items that pose a security
risk to other inmates as acceptable [ Loureiro v Imvula Quality Protection (Pty) Ltd
2014 SA 398 CC at para 53]. Harm-causing conduct is wrongful. For these reasons
the order was made.
______________________________
DM THULARE
JUDGE OF THE HIGH COURT
Counsels for Appearance
Applicant : Adv. Danie Claassens dclaassens@icloud.com
Instructed by : Mr J C Cohen
Respondent : Adv. E R Mentoor Mentoor@capebar.co.za
Instructed by : Mr A Stallenberg