THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO: 218/2003
Reportable
In the matter between
THE MINISTER OF SAFETY AND SECURITY First Appellant
JOHAN JACOBUS BECKER Second Appellant
and
PIETER NICOLAAS RUDMAN First Respondent
PETRUS BOTHA SCHABORT Second Respondent
CORAM: MPATI DP, FARLAM JA et VAN HEERDEN AJA
HEARD: 23 MARCH 2004
DELIVERED: 18 AUGUST 2004
Summary: Delict – child suffering severe hy poxic brain damage fr om near drowning in
unsecured family swimming pool – whether policeman attending scene and stopping
cardio-pulmonary resuscitation commenced earlier acted wrongfully and negligently
and, if so, whether his action causally connected with brain damage – applicability of s 2
of Apportionment of damages Act 34 of 1956 – successive wrongdoers – person who had
left pool unsecured also negligent – allocation of liability for damages suffered.
Order set out in para [90].
JUDGMENT
VAN HEERDEN AJA
Page 2
Introduction
[1] On 6 October 1997, Roald John Rudm an, then a toddler of two years
and eight months ('Roald'), fell into the swimming pool at the Pretoria home
of his father, the first respondent, Pieter Nicolaas Rudman. The South
African Police Service ('SAPS') were summoned to the scene of the accident
and the second appellant, Johan Jacobus Becker ('Becker') , then a sergeant
with the SAPS, acting within the cour se and scope of his employment with
the first appellant, the Minister of Sa fety and Security ('the Minister'),
attended to the scene together with his colleague, Sergeant Daniël Pienaar.
Roald survived this incident (hereinaft er referred to as 'the near-drowning
incident'), but sustained severe hypoxic brain damage as a result of which he
is now a spastic tetraplegic with an epileptic tendency.
[2] This appeal primarily concerns the issues of whether Becker's actions
and/or omissions at the scene of the near-drowning incident, in his capacity as
a servant of the Minister, were wrongful and negligent. There are also further
issues of whether Becker's negligence, if it is held to exist, is causally
connected with the brain damage suffere d by Roald and, if so, the extent to
which the Minister is vicariously liable for such damage.
Page 3
[3] In September 1998, Mr Rudman instituted an action for delictual
damages against the Minister and Becker in the Pretoria High Court, acting in
his personal capacity as well as in his ca pacity as Roald's father and natural
guardian. In his particulars of claim he alleged that Becker, in his capacity as
an official of the SAPS, who attende d to the scene where Roald had fallen
into the swimming pool, owed Roald 'a duty of care' and that Becker –
'. . . breached this duty of car e and acted in a negligent manner in one or more or all of the
following respects :
7.1 He prevented, alternatively prohibited, further alternatively , hindered, the
continued administration of cardio-pulmona ry resuscitation ['CPR'] which had been
commenced and continued throughout prior to his arrival at the scene;
7.2 He failed to continue with, alternatively assist with, the administration of cardio-
pulmonary resuscitation upon his arrival at the scene and thereafter in circumstances where
he could and should have done so;
7.3 He declared baby Rudman [Roald] dead, without examining baby Rudman,
alternatively, whilst he examined baby Rudman insufficiently, further alternatively, whilst
he examined baby Rudman inappropriately, wh ereas in truth and fact, baby Rudman was
still alive;
7.4 He allowed baby Rudman to remain without essentia l cardio-pulmonary
resuscitation for approximately ten minutes in circumstances where he could and should
not have done so.'
Page 4
[4] The Minister and Becker denied lia bility. Furthermore, they issued a
third party notice, joining the sec ond respondent, Petrus Botha Schabort
('Bo'), Mr Rudman's stepson and th e son of Roald's mother, Mrs Elna
Rudman, born from a previous marriage, as a third party. They claimed a
contribution from him in the event of the trial court holding that Becker acted
negligently and that such negligence contributed to the damages suffered by
Mr Rudman and Roald. This joinde r was based on the allegation that Bo
acted negligently in that, although he wa s aware of the fact that his toddler
step-brother, Roald, was on the premises and that there was a danger of his
falling into the swimming pool, he (Bo) removed the safety net from the pool,
opened the door and security gate lead ing to the pool, failed to inform the
domestic worker looking after Roald of the fact that the pool was unprotected
and unattended, and then left the premises, only instructing his seven-year-old
sister, Chantal, to look after Roald.
[5] The trial was run during May 2001. At the pre-trial conference held in
late April 2001, the parties agreed th at 'subject to the honourable court's
approval . . . a separation of issues is indicated and [that] at commencement of
the trial [they would] apply for an orde r that the issue of liability be decided
first and separately from the issue of quantum. The issue of liability will
include the issue of the negligence of the employee of the first defendant as
Page 5
well as the third party, as well as the defendants' special plea and the question
of causality.'
At the commencement of the trial, the trial judge, Mota ta J, made an order, in
terms of rule 33(4), to the effect that 'the issue of liability will be decided first,
separate from the issue of quantum'.
[6] The trial on the separated issu e was concluded during May 2001 and
judgment was delivered on 7 June 2002. The trial court declared, inter alia,
that the Minister and Becker were join tly and severally liable to Mr Rudman
for the full extent of such damages as Mr Rudman might prove in his personal
and/or his representative capacity. The ex tent of the third party's contribution
to the damages to be paid by the Minist er and Becker was declared to be 20
per cent.
[7] The appellants now appeal against th ese orders of the trial court, leave
to appeal having been granted by this Court, on petition to it, during April
2003. Although leave to appeal was also granted in respect of the trial judge's
dismissal of the appellants' special pl ea (non-compliance with s 57(2) of the
South African Police Service Act 68 of 1995), the appellants are not
proceeding with their grounds of appeal relating to such special plea. They
Page 6
are also not proceeding with their add itional grounds of appeal, being those
relating to Mr Rudman's alleged vi carious liability ba sed on the alleged
negligence of Mrs Siena Baloi, the do mestic worker who was looking after
Roald at the time of the near-drowning incident.
Factual evidence
[8] As indicated above, Roald fell in to the swimming pool at the Rudman
residence in Pretoria whilst he was in the care of Mrs Baloi on 6 October
1997. Roald's half-brother, Bo, had on that day arranged with his friend,
Kobus Pienaar ('Kobus'), the manager of the video shop just up the street from
the Rudman residence, at which Bo work ed part-time, to relieve Kobus for a
short while so that Kobus could vis it the Rudman residence for a swim.
Before leaving for the video shop, Bo took the safety net off the swimming
pool and opened both the sliding door of the sitting room leading out to the
swimming pool area, as well as the e xpanding security gate on the sliding
door. He did not tell Mrs Baloi that he had done so, nor did he tell her that he
would be leaving the premises, but simply asked Chantal to 'watch' Roald.
[9] Mr Rudman testified that, on the afternoon in question, he came home
to collect a suit that needed adjustment . On his arrival, he met his step-
daughter, Chantal, at the front gate of the property, wearing a swimming
Page 7
costume. Chantal told hi m that 'they' were waiting to swim with Bo. Having
collected his suit from his bedroom, Mr Rudman departed, leaving Roald in
the kitchen where Mrs Baloi was prepari ng the evening meal. He did not see
Bo, nor did he know that the safety net had been removed from the swimming
pool and that the sliding door and secu rity gate leading to the swimming pool
area were open. He left the premis es in his car at 16h02 and went to the
Menlyn Shopping Centre. A while later, he received a call on his cellular
telephone from his wife, telling him that Roald had fallen into the swimming
pool and was dead. According to th e telephone records handed in as an
exhibit by the respondents’ counsel during the trial, this call was made from
Mrs Rudman's cellular telephone at 16h36. Mr Rudman asked his wife if
somebody was 'doing CPR' and she replied in the affirmative. He sped home,
arriving at approximately 16h45, by which time the qualified paramedics
were already on the scene, working to revive Roald who was lying on the
carpet in the dining room. His wife and one of her colleagues, Mr Cornel
Windell, were standing outside the house, together with two policemen, while
Bo and Kobus were in the dining room and Mrs Baloi was in, or in the
vicinity of, the kitchen. Mr Rudman testified that neither Roald nor Chantal
was allowed to be in the swimming pool area without supervision, even when
the safety net was fixed on the pool, a nd that every member of the Rudman
household, including Bo and Mrs Baloi, knew that the security gate and door
Page 8
leading to the swimming pool area ha d to be closed and the swimming pool
safety net fixed in place at all times when the pool was not in use.
[10] Mr Rudman further testified that , very early on the morning after the
near-drowning incident, Becker came to the Unitas Hospital, where Roald had
been admitted the previous day, to enquire about the little boy's condition. He
conceded that Becker had no duty to be there and that he was not 'completely
insensitive' to what had happened.
[11] Mrs Baloi testified that she had seen the safety net in place on the
swimming pool earlier on the day in question. At the time that Mr Rudman
left the Rudman residenc e, she was in the kitche n, cooking. Immediately
thereafter, she had, at Roald's request , switched on the television in the sitting
room so that he could watch KTV. She had not checked whether or not the
sliding door and security gate were open, because she knew that they were
always kept closed. She had then telephoned her husband and was again
cooking in the kitchen after this telephone call when Kobus arrived to have a
swim. (Chantal had told her earlier that Kobus wa s 'coming to swim with
them'.) She had opened the main gate for Kobus by activating the switch next
to the front door. Shortly thereafter, as Mrs Baloi was walking from the
Page 9
kitchen to the sitting room to fetch Ro ald (apparently to go for a swim), she
met Chantal who informed her that Roald had fallen into the swimming pool.
[12] Mrs Baloi immediately ran outsi de to the swimming pool and found
that Kobus had already taken Roald out of the pool and had by then laid him
on the lawn. According to Mrs Baloi , Roald was lying on his stomach and
Kobus Pienaar was pressing at his back. She testified that she could see 'the
breathing movement of his body'. She ran back into the house to telephone
her employer (Mrs Rudman) at the latte r's office, which call is recorded as
having been made at 16h15. She told Mrs Rudman that Roald had fallen into
the swimming pool, whereupon Mrs Rudman said that she was coming home
at once. Mrs Baloi then returned to the swimming pool area and, apparently
acting on Mrs Rudman's instructions, told Kobus that they must take Roald
into the house. Kobus carried Roald in to the dining room and laid him on the
dining room table. He blew into the toddler's mouth, then used one or more of
his fingers to 'try to unblock something in his [Roald's] throat or something in
his mouth', and thereafter pressed him on the chest.
[13] Mrs Baloi answered a telephone ca ll and held the telephone receiver to
Kobus's ear while 'Kobus was listening to the instructions being given by the
rescue people from the ambulance centre'. It is common cause that Roald was
Page 10
dressed only in a pair of red underpants and that neither Kobus nor Mrs Baloi
had made any attempt to dry his body off after he was removed from the pool.
Mrs Baloi described his colour as 'betwe en being white and red, but not being
blue and not black', while she describe d the temperature of the toddler's body
as 'not cold . . . warm, not hot but medi um'. She stated that, while Roald was
lying on the dining room table, being helped by Kobus in the manner
described, she (Mrs Baloi ) had touched Roald's ches t with her right hand and
had listened for a heartbeat by placing her ear on the left-hand side of Roald's
chest. According to Mrs Baloi, she ha d heard a heartbeat but it was 'too low';
the heart was beating 'slowly' and and she could hear the heartbeat only very
faintly. Although she was 'very glad' and had 'some hope' when she heard and
felt the heartbeat, she did not tell Kobus about this; indeed, she did not speak
to Kobus while all this was going on.
[14] While Mrs Baloi was listening and feeling for the heartbeat, Kobus was
'busy massaging him and pressing the body'. She thought that Kobus had been
'working on' Roald in the dining room for about three minutes when the police
(Becker and Sergeant Pienaar) arrived. She stated that, when the police
arrived, Becker spoke aggressively to Kobus and told him to move away from
the child, as he (Becker) wanted to see him. Although her evidence was
somewhat unclear in this regard, it would appear that Becker had only told
Page 11
Kobus to 'move away' from Roald after Becker had examin ed the child and
looked into his eyes with the aid of a small torch. Becker asked Mrs Baloi to
fetch a blanket, telling her that the ch ild was dead, and after she had done so,
he had covered the toddler's body with the duvet she had fetc hed. She could
give no coherent version as to what had happened after this, but stated that
she had certainly not seen either Bec ker or Sergeant Pienaar performing any
CPR on Roald. Although she said in her statement that she had told Becker,
prior to his examination of Roald, that she had heard a heartbeat and that he
had ignored this information, Mrs Baloi testified in court that she had not
spoken to the police at all until she was sent by them to fetch a blanket.
[15] Kobus had just turned twenty at th e time of the near-drowning incident.
He confirmed that Bo had offered to relieve him at the video shop on the day
in question so that he (Kobus) could go for a swim at the Rudman residence.
Bo had come to relieve Kobus at approximately 16h00 and Kobus had arrived
at the Rudman residence very shortly thereafter. He had pressed the bell at the
main gate and someone ha d opened the gate for him, whereafter he had
walked around the house to the swimming pool area.
[16] After having changed into swim ming gear, he found Roald in the
swimming pool, floating face down at the shallow end. The safety net had
Page 12
been totally removed from the pool. Kobus immediately jumped into the
swimming pool at the shallow end, lifte d Roald out of the water and, while
still standing in the pool, placed the ch ild next to the pool on his back and
looked in his mouth to ascertain whethe r there were any 'obstructions' there.
He then turned Roald onto his side and pressed with bot h hands above the
child's hips in the area of the 'short rib'. This caused water and a vomit-like
substance to run out of the child's mout h. It would appear that the latter
substance was the remains of the e gg which Roald had eaten for lunch.
Kobus then turned the child back ont o his back, once again looked in his
mouth and 'het goed uitgekrap uit sy mond uit'.
[17] When Kobus lifted Roald out of the swimming pool, the toddler
showed no signs of life whatsoever. K obus listened to Roald's chest in order
to ascertain whether there was a heartb eat or a pulse, but there was nothing of
the kind. He also looked at the child 's chest to determine whether he was
breathing, but the chest was not moving at all. The temperature of the body
was cold and the colour was very pale.
[18] Whilst still standing in the water at the shallow end of the swimming
pool, Kobus put his hand under Roald's head and ensured that it was tilted
back and that there were no obstructions in his mouth or throat. He then
Page 13
pinched the child's nose closed, put his mouth over the child's mouth and blew
five times into his lungs, thereafter pr essing with both hands five times on the
child's chest. He testifie d that, each time he blew into Roald's mouth, the
child's chest rose and thereafter fell. He performed these actions
rhythmically, administering approximate ly five breaths every five seconds,
following by five compressions every five seconds.
[19] While still standing in the pool, Kobus became nauseous and vomited
on the side of the pool. He therefor e climbed out of the pool and carried
Roald to a nearby patch of lawn, where he continued with the same procedure
of alternative mouth-to-mouth resuscitation and chest compressions.
[20] At some stage (it is not clear ex actly when) Kobus asked Chantal, who
was outside, to fetch so mebody to telephone for help . Chantal apparently
went inside and conveyed the message to Mrs Baloi, who came outside and
was told by Kobus to summon help. Mrs Baloi thereafter informed Kobus
that the people from the emergenc y services were on the telephone,
whereupon Kobus carried Roald into the house, placed him on the dining
room table and continued performing CPR on the child. At no stage, however,
did the child show any reaction whatsoever to the CPR, remaining without
any sign of life, his body temperature remaining cold and his colour very pale.
Page 14
[21] While in the dining room, Kobus spoke very briefly over the telephone
to an official from the emergency services, while Mrs Baloi held the
telephone receiver to his ear and he continued with CPR. As far as Kobus
could recall, the telephone conversation lasted only a few seconds, the official
simply telling him to look in the child's throat, to blow into his mouth and to
compress his chest. According to Kobus, he was satisfied that he was already
doing these things correctly. Kobus further testified that, while he was
performing CPR on Roald on the dining room table, he saw Mrs Baloi
holding her ear next to Roald's uppe r body, apparently listening for a
heartbeat. Mrs Baloi had not, however , told him whether she had heard a
heartbeat or anything else, and he had not asked.
[22] According to Kobus, he had been performing CPR on Roald for a total
of between ten and fifteen minutes when two policemen (Becker and Sergeant
Pienaar) arrived at the Rudman residenc e. Becker came over to Kobus and
told Kobus in a rather brusque manner (`'n bietjie van 'n krasse manier') to
stand aside. Kobus did so, because Becker was a policeman and he (Kobus)
was under the impression that the police were going to 'take over the situation'
and that they would continue with the resuscitation.
Page 15
[23] Becker then examined Roald, lifting up his arm and feeling for a pulse,
shining a little torch into the child's eyes, and bending down and looking into
the child's mouth. Kobus conceded th at, at that time, Roald's body was still
lifeless, cold and very pale. Alt hough Kobus agreed that Becker had not
found any pulse, he was not able to confirm Becker's evidence to the effect
that, when Becker shone the torch into the child's eyes, the pupils were fully
open, fixed and dilated. Becker then said quite loudly that Roald was dead
and, for this reason, he told Mrs Baloi to fetch a blanket to cover the child.
Kobus stated that he was so astounde d ('verbaas') when Becker said that
Roald was dead that he did not know what to think. He asked Becker if there
was not anything more that they could do ('ek het vir hom gevra of ons nie
nog iets kan doen nie, of ons nie moet aangaan of wat kan ons doen nie'), but
Becker replied in the negative. Like Mrs Baloi, Kobus insisted that neither
Becker nor Sergeant Pienaar had perfo rmed any form of CPR on Roald, in
contrast to the evidence of Becker and Sergeant Pienaar to the effect that they
had commenced with CPR, but had stopped very shortly thereafter.
[24] As stated above, Kobus testified that he had ceased performing CPR on
Roald when told by Becker to stand aside, because Becker was a policeman
and he (Kobus) thought that Becker was going to 'take over the situation' and
continue with resuscitation. When th is did not happen, despite Kobus asking
Page 16
Becker whether there was not somethi ng more that they should be doing,
Kobus felt helpless and accepted Becker's statement that Roald was dead. He
did so because Becker's actions in 't aking over the situation' and examining
the child made him think that Becker knew what he was doing. He conceded,
however, that at the stage when Becker examined the child, there were still no
signs whatsoever that Roald was alive.
[25] According to Kobus, approximate ly ten minutes after he had been
instructed by Becker to stand aside and had ceased performing CPR on Roald,
Mrs Rudman arrived at the house, together with Mr Windell.
[26] In his affidavit, Kobus stated that shortly after Mrs Rudman and Mr
Windell had arrived at the house, further policemen arrived, one of whom was
a paramedic, and the latter then resumed performing CPR on Roald. This was
at about 16h30. He also stated in his a ffidavit that the time lapse between the
time that he stopped performing CPR on Roald and the time when CPR was
resumed 'would have been approximately ten minutes'. He inferred that one
of the policemen was a paramedic beca use he was carryi ng a small medical
bag and, as Kobus could recall, he gave Roald an injection (which Kobus
assumed was an adrenaline injection) directly into the child's lungs.
According to Kobus, the policeman with the medica l bag (apparently
Page 17
Sergeant Louis Adriaan Nel) who had given Roald the injection, had also
started with CPR. Other paramedics thereafter arrived at the Rudman
residence. They put a pipe into Roald's trachea and lungs and worked on
Roald, using a machine with electrica l leads and sensor points, until a pulse
was detected, whereafter Roald was rushed to hospital in an ambulance.
[27] Kobus's brother had explained to him how to do CPR when he (Kobus)
was in standard six or se ven. His brother, who was a medical student at that
time, had demonstrated on Kobus how CPR should be performed, although
the CPR which he had demonstrated was th at applicable to adults. Since that
time, Kobus had not had the opportunity to apply what his brother had taught
him. When asked in chief how he knew that the CPR should be continued
until Roald revived or until somebody a rrived him to assist him, Kobus
answered as follows:
'. . . Jy sien dit orals, jy kan dit op TV ook sien. Jy moet aanhou tot iemand jou kom hulp
bied, tot die ambulans aankom en hulle kan aangaan.'
According to Pienaar, if Becker had i ndicated to Kobus that he (Becker) did
not know how to do CPR, Kobus would have continued with the CPR which
he was doing until expert help arrived.
Page 18
[28] Mrs Rudman testified that, on the day of the near-drowning incident,
she was at her place of employment when she received a call from Mrs Baloi
at 16h15, telling her that Roald had fa llen into the swimming pool and that
she should come home at once. She immediately thereafter telephoned the
emergency services, told them what had happened, gave them her address and
asked them to send help to her home, as also to telephone her home to give
instructions how to perform CPR. This call was made at approximately
16h17. At that stage, she thought on ly Mrs Baloi and her seven-year-old
daughter, Chantal, were at home and was unaware that Kobus was also there.
[29] Mrs Rudman then left her office and a friend, Mr Windell, drove her in
her own vehicle to her residence. While travelling in the motor vehicle on her
way home, she made two telephone calls on her m obile phone, one to her
husband's office (recorded at 16h19) in a futile attempt to contact him, and the
second one (recorded at 16h21) to her home. According to Mrs Rudman,
during the second telephone call, she s poke to her daughter, and 'in a child-
like way that she would understand I e xplained to her what to do until we
arrived home'. Under cross-examinati on, she elaborated by saying that she
had told her daughter to continue rubb ing Roald's chest, closing his nose and
blowing into his mouth, doing this rh ythmically until she got there. She
testified that she knew how important it was for Roald to get immediate
Page 19
attention after being removed from the swimming pool, and that she had
gained this knowledge 'from reading a nd listening'. She had never performed
CPR on anybody or even on a model, but knew about CPR from what she had
seen on 'actuality programmes or on TV'. At a later stage in her evidence
under cross-examination, Mrs Rudman stated that she had not asked Kobus
how he had performed the CPR, as sh e was not a medical expert and she
thought that, even if he had explaine d to her what he had done, she would not
have understood it. She had asked the emergency services to give telephonic
instructions how to do CPR and she had trusted that the instructions given
were correct. When asked by counsel for the appellants what the correct
method was of performing CPR on an in fant, she refrained from answering
this question, stating that she was not a medical expert.
[30] From her affidavit, it would appear that she and Mr Windell arrived at
the Rudman residence at about approxi mately 16h25, about the same time as
her eldest son, Bo. She jumped out of the car while it was still in motion and
ran into the house. Two policemen we re already on the premises. One of
them who was outside the house (appare ntly Sergeant Pienaar) followed her
inside and the other (apparently Beck er) was already in the dining room,
standing at the dining room table on wh ich Roald was lying. Roald's whole
body, including his head, was covered by a duvet. She was about three paces
Page 20
away from Roald when Sergeant Pien aar stopped her by holding her arm and
Becker lifted the duvet, telling her th at her son was dead. Her son's body
looked very pale. Mr Windell had in the meantime st opped the car and
followed her into the house, while her son Bo had run into the house with her.
Kobus was already in the dining room.
[31] Upon being told that her son was dead, she was 'terribly shocked' and
'very upset' and ran out of the house. As she stated in her affidavit :
'I lost total control of the situation for a period and cannot calculat e the time that passed
since then in that I was in total shock'.
After spending a short while outside, sh e re-entered the house, spoke to Mrs
Baloi in the kitchen, and then went to her bedroom to try to telephone Mr
Rudman, once again without success. She then went outside again, where she
saw a police vehicle, which was drivi ng very fast, stopping abruptly in front
of the house. Two policemen got out of the vehicle and entered the house.
Mr Windell told her that these peopl e would perform CPR on Roald. She
returned to the bedroom and used her cellular telephone to telephone her
sister-in-law (at 16h35) to tell her wh at had happened and that Roald was
dead. She testified that this was s hortly after the second group of policemen
(Sergeants Nel and Binneman) arrived.
Page 21
[32] At 16h36, she eventually got th rough telephonically to her husband on
his cellular telephone number and told him what had happened. She waited
outside the house for Mr Rudman, who arrived shortly thereafter and who
went inside to check what was going on, while she remained outside. A while
after the second set of policemen - w ho had recommenced CPR - arrived, an
ambulance arrived with paramedics. She was still outside at that time talking
to Mr Windell and Becker. Her evidence was that, when Be cker told her that
her son was dead and also subsequently, he spoke to her abruptly and roughly,
certainly not in a soothing or comforting way.
[33] After the emergency personnel had arrived in the ambulance, she knew
that they were performing CPR and 'eve ntually, what felt like hours later', she
was told that they had detected a pul se. Roald was then taken by ambulance
to the Unitas Hospital.
[34] According to Mrs Rudman, Becker was responsible for what had
happened to Roald because 'he should not have declared my son dead'. She
conceded, however, that Becker had an swered a call for help, had driven to
her home at high speed to render assist ance and had found a critical situation
upon arrival there. She also conceded that, if in fact Roald had been dead at
Page 22
the time he was examined by Becker, putting a blanket over his body 'would
have been a humane thing to do'. Nevertheless, she reiterated her strong belief
that the CPR should have been c ontinued by Kobus, who had received
telephonic instructions from the emergenc y services, until expe rt help arrived
and that Becker should not have caused the CPR to be inte rrupted. She was
of the view that her son's brain damage was (at least partially) the result of the
interruption, on Becker’s instructions, of the CPR being performed by Kobus,
and she blamed Becker for this.
[35] As indicated above, Mr Windell dr ove Mrs Rudman to her home after
she had received the telephone call from Mr s Baloi. He was in fact with her
in her office when this call had come through. On the way to the Rudman
residence, he had driven 'fairly fast with hazards on and my emergency lights',
although the traffic at that time was 'fai rly high or dense' because it was peak
time. They arrived at the Rudman residence at approximately 16h25 and Mrs
Rudman's daughter, Chantal, ran out a nd told Mrs Rudman that Roald was
dead. Mrs Rudman, who was understandabl y 'very, very upset' at that stage,
ran into the house, Mr Windell following two to five metres behind her. He
was on his way to the front door when Mrs Rudman, who had been in the
house for a very short period, cam e running out again, 'shouting and
screaming'.
Page 23
[36] Mr Windell then entered the house and saw Roald lying on the dining
room table covered with a duvet. Mrs Baloi and Kobus were near the table on
which Roald was lying, Mrs Baloi cr ying and Kobus in a state of shock.
According to Mr Windell, he thought that he would attempt to start CPR on
the little boy and he therefore went up to the table and removed the duvet.
Roald was very pale and cold, but Mr Windell did not listen for any breathing,
try to find a pulse or to detect any br eathing, or check the pupils of the child's
eyes. When asked under cross-examina tion why he wanted to start CPR, he
stated that 'I just thought that I am goi ng to try something. Elna is a friend of
mine and maybe, maybe we can, I can do something.' He had previously been
in the police force and, although he had had a bit of training in CPR in the
police college, using a model, he ha d never himself performed CPR on a
person. He testified that, when he was in the police force, this 'bit of training'
was part of the basic training that all policemen received.
[37] Before Mr Windell was able to st art performing CPR on Roald, another
policeman from the flying squad, whom he knew very well and with whom he
had worked, one Pierre Binneman ('Sergeant Binneman'), arrived at the house,
accompanied by Sergeant Nel whom Mr Windell did not know. As Mr
Windell knew that 'Pierre was a medic or had medic experience', he left the
Page 24
situation to Sergeant Binneman and walked out of the house. He testified that
Sergeants Nel and Binneman took Roald o ff the table and 'were busy with the
child' as he (Mr Windell) left the house.
[38] Mr Windell recalls the parame dics arriving on the scene in an
ambulance approximately fifteen minutes after the arrival of Sergeants Nel
and Binneman. He was still at the house after Roald was taken by ambulance
to the hospital. He al so remembered Mr Rudman arriving at the house just
before the ambulance took Roald away . According to Mr Windell, Mr
Rudman was 'also quite out of it, hysterical, did not know what had
happened'.
[39] Sergeants Nel and Binneman, memb ers of the Highway Patrol at the
relevant time, were patr olling in their vehicle on the afternoon in question
when they heard a radio call made from a Lyttelton police vehicle to the
relevant police station requesting an ambulance for a child who had possibly
drowned. Because Sergeant Nel was a police diver a nd had also been trained
by the military in emergency help (he was a Level 3 emergency worker), they
decided to react to the call as they knew that they could get to the scene
quicker than the emergency services. Neither of them was able to say how
long it had taken them to get to the Ru dman residence, but they had driven
Page 25
relatively fast in a BMW 328i, using th eir siren and emer gency blue lights.
They thought that they must have picked up the call after 16h00 because it
was already peak traffic time.
[40] They arrived at the Rudman re sidence after Becker and Sergeant
Pienaar. Sergeant Nel asked Becker and Sergeant Pienaar what had happened
and was told that a child had fallen in the pool and had drowned or almost
drowned. They immediately took Serg eant Nel, with Sergeant Binneman
close on his heels, to the dining room where they found Roald lying on the
dining room table completely covere d with a duvet. It would appear that
Kobus was in the dining room at that time, while Mrs Baloi was screaming
hysterically in the kitchen.
[41] Sergeant Nel removed the duvet, finding Roald's body to be ice cold
and already showing sianotic patches (viz the skin ha d a bluish tinge). Roald
did not react to Sergeant Nel's voice. Sergeant Nel performed a finger sweep
in Roald's mouth and found what looked like food and mucus ('slym') there,
which he removed. He held his ear to the child's mouth, listening and feeling
with his cheek for any breathing, while at the same time touching the child's
chest with his hand. This he did for te n seconds, as he had been trained to do,
without any success. He also used a st ethoscope held against the child's chest
Page 26
to try to find a heartbeat, while feeling for a brachial pulse at the child's wrist.
This too he did for ten seconds, as he had been trained, without any success.
It would appear that Kobus told him that, although they did not know how
long the child had been in the wate r, CPR had already been performed.
According to Sergeant Nel, Roald's Glasgow Coma scale was three (the
lowest possible figure), as the child had showed no reaction whatsoever to
sound or to pain and his eyes did not react in any way to light.
[42] It was at this stage that Sergeant Nel decided to do CPR :
'Toe moet ek vir myself besluit of ek kan begin om KPR [te doen] of ek dit gaan los
waarop ek besluit het ek gaan probeer en ek het die kind van die tafel afgehaal en op die
vloer neergesit.'
He took this decision because, if some one had already performed CPR, there
was perhaps a small possibility that this could have helped.
[43] Once the child had been lifted from the table onto the floor, Sergeant
Nel performed another finger sweep to check whether there were any
obstructions in his mouth. At that stage, the paramedic, Mr Jan Adriaan
Oosthuizen, from the Pretoria Fire De partment and Ambulance Services,
arrived on the scene. According to Sergeant Nel, Mr Oosthuizen took over the
scene as he was much better qualified to deal with the situation than Sergeant
Page 27
Nel. Sergeant Nel could not rememb er whether, by this time, he had
'ventilated' the child at all. Helped by Sergeant Nel, Mr Oosthuizen began
with active and advanced resuscitation, intubating the child (ie putting a pipe
into the child's trachea and into the lungs), and making use of a so-called
'ambusack' to pump air into the child's lungs. Sergean t Nel also testified that
Mr Oosthuizen had made use of a heart monitor, but that he himself did not
understand how such equipment worked. Sergeant Nel estimated that Mr
Oosthuizen had 'worked on' the child for between thirty and forty-five
minutes before a heartbeat was detected. He reiterated that , at the time that
he, Sergeant Nel, had examined the child, he had found the body to be
completely lifeless.
[44] It is also important to note that Sergeant Nel testif ied that he had not
received any instruction in CPR or othe r such 'behandeling' during his police
college training (he had joined th e SAPS in December 1988, while Becker
had joined in January 1986), althou gh he had received some training in
emergency help. He conceded that , before he had done his course in
emergency help at the milita ry base, he had 'reeds ge weet daar is iets soos
KPR en min of meer wat dit is'. He also conceded that, before he had
received his formal training, he knew that CPR was an important component
in an attempt to save somebody, par ticularly in the case of a drowning.
Page 28
However, although his wife was a paramedic, it wa s only when he had done
his formal training in emergency help that he had learnt how CPR actually
worked ('hoe dit regtig werk'). The course which he ha d done at the military
base (in Gauteng) in about 1997 ha d stretched over five weeks and had
qualified him as a Level 3 em ergency helper. At the time of the trial, he was
no longer registered as such, because his qualification had to be renewed
every three years by writing a refresher examination and he had not done this.
As far as he knew, Sergeant Binneman had no similar qualifications.
[45] The following exchange betwee n counsel for the respondent and
Sergeant Nel, during the latter's cross-examination, is an important one:
'Sou dit korrek wees om te sê sersant, dat as iemand by u gekom het voordat u self
formele opleiding gekry het en vir u gesê het mo et 'n mens probeer met KPR en as jy eers
begin het daarmee moet jy ag, sommer na 'n rukkie net ophou of sou u, is u kennis dat 'n
mens moet aanhou so lank soos wat jy kan to tdat iemand daar kom wat regtig weet wat
aangaan? - - - Dit sal moeilik wees vir my om so te antwoord. Na my opleiding kan ek vir
u sê ja, 'n ou kan nie net ophou met KPR nie.
U kan nie onthou wat u kennis was vantevore ni e, lei ek af. - - - Dit is moeilik. Ek
kan nie sê of ek sou dit geweet het of ek dit nie so geweet het nie.
Sersant, kom ons soos hulle sê, "let's talk frankly". Ek verstout my om te sê daar is,
ek wonder of daar mense is wat nie weet, ek praat nie van doktors en paramedici en
noodhulpers, volgens wat u nou al gesien het – u het moes nou al 'n bietjie rondbeweeg in
die wêreld – dat daar kwalik mense wat nie weet (ek praat nou van vo lwassenes) dat as jy
Page 29
met KPR begin moet jy aanhou so lank as wat jy kan. Nie waar nie? - - - Dit is waar, maar
die voorbeeld wat jy gebruik het soos op TV's en dié goed. Ek kan selfs my opleiding vat.
Die manier wat ek KPR geleer is en die ma nier wat ek nou al gesien het hoe paramedici
KPR doen verskil ook van mekaar. So daar is – ek kan nie met eerlikheid sê dat ek dit sou
gedoen het of ek sou só gemaak het nie.
Wel, in dié geval wou ek dit doen. - - - Op dié spesifieke dag sou ek alles in my
vermoë gedoen het om daardie kind te probeer help.'
[46] Mr Oosthuizen, the paramedic who took over from Sergeant Nel,
conceded that his independent recollec tion of the incident was rather vague
(obviously because of his frequent involvement in multiple trauma incidents –
between eight and twelve such incidents in an eight hour shift). Nevertheless,
he testified that he 'took over the sc ene' and treated Roald according to
'protocol', inter alia intubating Roald, administer ing adrenaline (as far as he
could remember), and using an ECG monitor, with leads and electrodes
placed on the patient, to detect electrical current in the heart, if any. He could
not remember how long it took before he detected a pulse, although in his
statement, made some ten months afte r the near-drowning incident, he stated
that :
'Na 'n hele paar minute het ek 'n pols ter uggekry en besluit om die kind na die Unitas
Hospitaal te neem vir verdere behandeling wat toe ook gedoen is.'
Page 30
He conceded under cross-examination that he would not have used the words
`'n hele paar minute' if it had taken thirty to forty-five minutes (as was
estimated by Sergeant Nel) to detect a pulse.
[47] When asked by counsel for the a ppellants why he had commenced with
resuscitation despite the child's appare nt lifeless condition (ie, ice-cold, no
breathing, no heartbeat, no reaction to external stimuli), he responded as
follows :
'In die eerste plek, dit is my werk. Ons moet maar altyd probeer en oor die geskiedenis wat
ek gekry het baie vaag was. Niemand kon vir my sê hoe lank die kind onder die water was
nie en hoe lank die kind al so was nie, en 'n ou probeer.'
It is also important to note that wh en asked by counsel for the appellants
whence he obtained his knowledge that , particularly in the case of a
drowning, one should not stop CPR un til qualified medical personnel arrived
to take over, Mr Oosthuizen stated that 'ek is dit geleer u it boeke uit en deur
my opleiding'.
[48] As regards the evidence given by both Becker and Sergeant Pienaar, it
is in my view clear from the record as a whole that counsel for the first
respondent was correct in his submi ssion that both were in many respects
unreliable witnesses and that, insofa r as their evidence differed from the
Page 31
evidence given by Kobus and Mrs Baloi, the evidence of the lastmentioned
two witnesses should be accepted.
[49] It would appear that, whilst on police motor patrol on the day in
question, Becker and Sergeant Pienaar (the driver of the police motor vehicle)
received a radio message concerning a possible drowning at an address in
Wingate Park (the Rudman residence). At that time, they were some 11.8
kilometres away fro m the Rudman residence. As pointed out by counsel for
the appellants, they coul d not have received this radio message any earlier
than 16h17, the approximate time at which Mrs Rudman telephoned the
emergency services from her office, as th is call still had to be relayed to the
police radio control room a nd sent out to police vehicles within its reception
area. It would appear that they imme diately proceeded as quickly as possible
to the address given, taking approximately seven minutes (in peak hour
traffic) to reach the scene.
[50] Upon entering the house, they f ound a small boy lying on the dining
room table, with an unknown young man (Kobus) giving the child mouth-to-
mouth resuscitation. Although both tes tified that Kobus was struggling and
was performing the CPR incorrectly, ne ither was able to explain at all
convincingly what Kobus was doing incorrectly. Becker approached the table
Page 32
and told Kobus to stand aside. Un der cross-examination, Becker conceded
that he was upset, that he spoke in a l ouder tone than usual, and that he might
have shown some of the emotion which he was feeling at that stage.
[51] Becker then apparen tly examined the child, feeling for a pulse, possibly
listening to Roald's chest for a heartb eat, and shining a little torch into the
child's eyes. There were no signs of life whatsoever – the body was very cold
and very pale and the pupils of the child's eyes were dilated and fixed.
[52] Both Becker and Sergeant Pienaar testified that they 'took over' the
performance of CPR from Kobus, Sergean t Pienaar performing the mouth-to-
mouth resuscitation while Becker performed chest compressions. In my view,
however, it is clear from the record as a whole that, after Becker had told
Kobus to stand aside and had examined the child, he had concluded that the
child was dead and had asked Mrs Baloi to fetch something to cover the
child's body. He had then covered th e body completely with the duvet which
Mrs Baloi had fetched. When aske d why he had done so, he responded as
follows :
'Omdat Roald vir my . . . na my mening dood was wou ek hom bedek. Dit was vir my
toepaslik om hierdie klein seun toe te maak da t almal hom nie kan sien nie. Dit is vir my
waaroor dit gegaan het.'
Page 33
[53] That Becker had believed from the outset that Roald was dead and that
neither he, nor Sergeant Pienaar, ha d performed any CPR on the child, was
the version put several times to B ecker by the first respondent's counsel
during cross-examination. In my vi ew, this was established by the first
respondent on the requisite balance of probabilities, having regard to the
record as a whole. It is, however, im portant to note that it was not suggested
at any stage by the first respondent that Becker's belief th at Roald was dead
was not a genuine and bona fide belief, nor was this put to Becker during
cross-examination.
Expert evidence
[54] Most of the expert evidence given during the trial for both sides was
devoted to the effectiveness or othe rwise of the CPR performed by Kobus on
Roald after the child had been removed from the swimming pool. All the
experts also testified on the question whether the discontinuation of such CPR
upon Becker's instructions and Becker's failure himself to perform CPR on the
child, coupled with Becker's conclusion that Roald was dead and his decision
to cover the child completely with a duvet, caused or significantly contributed
to the brain damage ultimately suffere d by Roald. Much of the judgment of
the trial court was devoted to an analysis of the expert evidence on both sides,
the trial court ultimately concluding th at the neurological outcome for the
Page 34
child would have been significantly different if Becker had not intervened and
caused the CPR being performed by K obus to be stopped. However, in
argument before this Court, counsel fo r the appellants conceded that, on the
expert evidence as a whole, the re spondents had succeeded in proving, on the
requisite balance of probabilities, that there was a causal connection between
Becker's conduct in causing the CPR to be discontinued and at least some of
the brain damage ultimately sustained by Roald.
[55] From the expert evidence as a whole, including that given by the
experts for the respondents, it is clear that at least part of the irreversible brain
damage sustained by Roald was caused by the initial submersion in the
swimming pool and that this damage c ould well have been significant. The
experts for both sides were agreed that it was simply not medically possible to
determine to what extent the in terruption of the CPR upon Becker's
instructions exacerbated the brain da mage suffered by Roald and contributed
to his present condition. In view of the conclusion which I have reached on
the aspects of wrongfulness and neglig ence, however, it is not necessary to
analyse the medical evidence on the aspect of causation in any further detail.
Page 35
Existence of legal duty (wrongfulness)
[56] Before this Court, counsel for th e first respondent submitted that the
latter's case in the trial court was not that Becker had a special legal duty
imposed upon him solely by reason of the fact that he was a policeman, and
that Mr Rudman's case would have been exactly the same ev en if Becker had
not been a policeman but a member of the public. To my mind, this
submission is not really borne out by the manner in which the particulars of
claim were framed. 1 Moreover, counsel for fi rst the respondent submitted
further that the case against Becker (and hence also against the Minister) was
that Becker, being in a position of authority , elected to exercise authority,
purposely interfered with the steps which were being taken to administer CPR
and assumed responsibility. According to counsel, this imposed upon Becker
a legal duty vis à vis Roald, as a matt er of common sense and justice, and
because, in the circumstances of this case, it was fair, just and reasonable to
impose such a duty. Moreover, the imposition of such a duty would be in
accordance with the legal convicti ons of the community, which would
demand that Becker's interferenc e with the CPR which Kobus was
performing; his failure himself to perform CPR on the child; his conclusion in
the absence of the required medical know ledge that Roald was dead; and his
decision to cover Roald's body with a duvet, ought to be regarded as unlawful.
1 See para 3 above.
Page 36
[57] Insofar as the negligence relied upon by the first respondent consists in
positive acts by Becker causing physical ha rm to Roald, it is presumed to be
unlawful.2 Thus, Becker's conduct in inte rrupting the CPR which Kobus was
performing at the time of Becker's arri val at the scene of the near-drowning
incident, his conclusion in the absence of the required medical knowledge that
Roald was dead, and his decision to c over the child's body with a duvet, give
rise to a presumption of wrongfulness in respect of such conduct. However,
insofar as Becker's alleged negligence consists of his failure - after having
caused the CPR which Kobus was perfo rming to be ceased - himself to
perform CPR on the child, this omission would be wrongful only if it occurs
in circumstances that the law regards as sufficient to give rise to a legal duty
to avoid negligently causing harm.
[58] The test for determining the wrongf ulness or otherwise of an omission
or failure to act in the context of an action for delictual damages was
formulated as follows by this Court in Van Eeden v Minister of Safety and
Security (Women's Legal Centre Trust, as Amicus Curiae):3
2 See, for example, Lillicrap, Wassenaar & Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475
(A) at 497B-C; Knop v Johannesburg City Council 1995 (2) SA 1 (A) at 26F-H; Minister of Safety and
Security v Van Duivenboden 2002 (6) SA 431 (SCA) para 12 at 441E-F; Minister van Veiligheid en Sekuriteit
v Geldenhuys 2004 (1) SA 515 (SCA) para 24 at 528F-G.
3 2003 (1) SA 389 (SCA) paras 9-10 at 395I-396E (per Vivier ADP).
Page 37
'[9] . . . An omission is wrongful if the defe ndant is under a legal duty to act positively
to prevent the harm suffered by the plaintiff. The test is one of reasonableness. A
defendant is under a legal duty to act positively to pr event the harm to th e plaintiff if it is
reasonable to expect of the defendant to have taken positive measures to prevent the harm.
The Court determines whether it is reasonable to have expected of the defendant to have
done so by making a value judgment based, inter alia , upon its percepti on of the legal
convictions of the community and on consider ations of policy. The question whether a
legal duty exists in a particular case is thus a conclusion of law depending on a
consideration of all the circumstances of the case and on the interpla y of the many factors
which have to be considered. See the judgment of this Court in Carmichele [Carmichele v
Minister of Safety and Security and Another 2001 (1) SA 489 (SCA)] at para [7] and recent
decisions of this Court in Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA)
paras [14]-[17]; Cape Metropolitan Council v Graham 2001 (3) SA 1197 (SCA) para [6];
Olitzki Property Holdings v State Tender Board and Another 2001 (3) SA 1247 (SCA)
paras [11] and [31]; BOE Bank Ltd v Ries 2002 (2) SA 39 (SCA) para [13] and the
unreported judgment of this Court in Minister of Safety and Security v Van Duivenboden ,
case No 209/2001 delivered on 22 August 2002 [ now reported at 2002 (6) SA 431 (SCA)],
para [16].
[10] In applying the concept of the legal convictions of th e community the Court is not
concerned with what the community regards as socially, morally, ethically or religiously
right or wrong, but whether or not the commun ity regards a particular act or form of
conduct as delictually wrongful. The legal convictions of the community must further be
seen as the legal convictions of the legal po licy makers of the co mmunity, such as the
Legislature and Judges. . . . '.
Page 38
[59] In Minister of Law and Order v Kadir ,4 this Court, dealing with the
alleged wrongfulness of the conduct of two police constables in failing to take
down the particulars of an offending driver and his vehicle, which information
would have enabled the seriously injured respondent to pursue a claim against
the Multilateral Motor Vehicle Accide nts Fund, despite such constables
having been informed by a witness to the collision of the circumstances under
which it occurred, stated as follows :
'As the judgments in the cases referred to earlier demonstrate, conclusions as to the
existence of a legal duty in cases for whic h there is no precedent entail policy decisions
and value judgments which "shape and, at times, refashion the common law [and] must
reflect the wishes, often unspoken, and the pe rceptions, often dimly discerned, of the
people" (per M M Corbett in a lecture reported sub nom 'Aspects of the Role of Policy in
the Evolution of the Common Law' in (1987) SALJ 104 at 67). What is in effect required
is that, not merely the interests of the parties inter se, but also the conflicting interests of
the community, be carefully weighed and that a balance be struck in accordance with what
the Court conceives to be society's notions of what justice demands.'
[60] In Knop v Johannesburg City Council5 Botha JA stated that the general
nature of the enquiry in this regard is correctly set out in the following well-
4 1995 (1) SA 303 (A) at 318F-H.
5 1995 (2) SA 1(A) at 27F-I.
Page 39
known passage in Fleming The Law of Torts 4 ed at 136 (as quoted in
Administrateur, Natal v Trust Bank van Afrika Bpk):6
'In short, recognition of a duty of care is the outcome of a value judgment, that the
plaintiff's invaded interest is deemed wo rthy of legal protecti on against negligent
interference by conduct of the kind alleged agai nst the defendant. In the decision whether
or not there is a duty, many fact ors interplay: the hand of hist ory, our ideas of morals and
justice, the convenience of admi nistering the rule and our soci al ideas as to where the loss
should fall. Hence, the incide nce and extent of duties are lia ble to adjustment in the light
of the constant shifts and changes in community attitudes.'7
[61] In this case, Roald's 'invaded intere st' is his right to bodily integrity and
security of the person, a right long regarded in our law as 'one of an
individual's absolute rights of personality'. 8 As is abundantly clear from the
inclusion of this right in the B ill of Rights in both the 1993 and the 1996
Constitution,9 it is most certainly a right 'd eemed worthy of legal protection'.
However, it must be emphasised that:
'[21] When determining whether the law should recognise the existence of a legal duty in
any particular circumstances what is called for is not an intuitive reaction to a collection of
arbitrary factors but rather a balancing against one another of identifiable norms. Where
the conduct of the State, as represented by the persons who perform functions on its behalf,
6 1979 (3) SA 824 (A) at 833 in fine–834A (per Rumpff CJ).
7 See too Van Duivenboden (supra) para 13 at 442C-E.
8 Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) at 145I-146C.
9 Constitution of the Republic of South Africa Act 200 of 1993 (date of commencement 27 April 1994), s 11;
Constitution of the Republic of South Africa Act 108 of 1996 (date of commencement 4 February 1997), s
12.
Page 40
is in conflict when its constitutional duty to protect rights in the Bill of Rights, in my view,
the norm of accountability must necessarily a ssume an important role in determining
whether a legal duty ought to be recognised in any par ticular case. The norm of
accountability, however, need not always tran slate constitutional duties into private law
duties enforceable by an action for damages, for there will be cases in which other
appropriate remedies are available for holdi ng the State to account. Where the conduct in
issue relates to questions of the State policy, or where it affects a broad and indeterminate
segment of society, constitutional accountability might at the time be appropriately secured
through the political process or through one of the variety of ot her remedies that the courts
are capable of granting . . . There are al so cases in which non-judicial remedies, or
remedies by way of review and mandamus or interdict, allow for accountability in an
appropriate form and that might also provide further grounds upon which to deny an action
for damages. However, where the State's fa ilure occurs in circumstances that offer no
effective remedy other than an action for da mages the norm of accountability will, in my
view, ordinarily demand the recognition of a legal duty unless there are other
considerations affecting the public interest that outweigh that norm . . .
[22]. . . It might be that in some cases the need for effective government, or some other
constitutional norm or consideration of publ ic policy, will outweigh accountability in the
process of balancing the various interests that are to be take n into account in determining
whether an action should be allowe d, as there were to be found in Knop v Johannesburg
City Council [supra] . . . I accept (without deciding) that there might be particular aspects
of police activity in respect of which the publi c interest is best served by denying an action
for negligence . . .'.
10
10 See Van Duivenboden (supra) paras 21-22 at 446F-448A. See further Minister of Safety and Security and
Another v Carmichele 2004 (2) BCLR 133 (SCA) para 37 at 145B-146B.
Page 41
[62] As was pointed out in both Van Duivenboden11 and in the most recent
Carmichele (SCA) case,12 where there is no effectiv e way to hold the State to
account other than by way of a privat e law action for damages, and in the
absence of any norm or consideration of public policy that outweighs it, a
legal duty should be rec ognised unless there are public policy considerations
which point in the other direction.
[63] In my opinion, there are, in the circumstances of this case, compelling
public policy considerations which militate against imposing upon policemen
such as Becker any positive duty to save people from drowning or to
administer CPR on near-drowning victim s. As emphasised by this Court in
Minister of Law and Order v Kadir:13
'. . . The police force is first and foremo st an agency employed by the State for the
maintenance of law and order and the prevention, detection and investigation of crime with
a view to bringing criminals to justice.'
Thus, in terms of s 205(3) of the 1996 Constitution:
11Supra para 22 at 448D-E.
12Supra para 38 at 146C.
13 Supra at 321F.
Page 42
'The objects of the police servic e are to prevent, combat and investigate crime, to maintain
public order, to protect and secure the inhabitants of the Republic and their property, and to
uphold and enforce the law.'
So too, under the South African Police Service Act 68 of 1995,14 the functions
of the police are in the main the maintenance of law and order and the
prevention of crime. Unlike the situation in Van Duivenboden 15 and in
Minister of Safety and Security v Hamilton ,16 the recognition of a legal duty
on the police to save people from drowning or to attempt to resuscitate near-
drowning victims would indeed, to my mind, have the potential to disrupt the
effective functioning of the police and would require the provision of
substantial additional training and resources. In my view, while the
imposition of such a duty upon policem en in the position of Becker and
Sergeant Pienaar might possibly be in accordance with the moral convictions
of the community (upon which question I express no opinion one way or the
other), the legal convictions of the community do not demand that Becker's
failure to attempt to perform CPR on Roald ought to be regarded as unlawful.
[64] In summary, therefore, while I am of the view that Becker's positive
acts in preventing the continuance of the CPR which Kobus was performing,
14 Date of commencement 15 October 1995.
15 Supra.
16 2004 (2) SA 216 (SCA).
Page 43
his conclusion in the absence of th e required medical knowledge that Roald
was dead, and his decision to cover Roald's body with a duvet, were indeed
prima facie unlawful, any failure on his part himself to attempt to perform
CPR on the child was not.
Negligence
[65] The following question is whether or not Becker acted negligently.
The classic test for establishing the existence or otherwise of negligence,
quoted with approval in numerous decisions of this Court, is that formulated
by Holmes JA in Kruger v Coetzee17 in the following terms:
'For the purposes of liability culpa arises if –
(a) a diligens paterfamilias in the position of the defendant –
(i) would foresee the reasonable possib ility of his conduct injuring another in
his person or property and causing him patrimonial loss; and
(ii) would take reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps.
. . . Whether a diligens paterfamilias in the position of the pe rson concerned would take
any guarding steps at all and, if so, what steps would be reasonable, must always depend
upon the particular circumstances of each case. No hard and fast basis can be laid down.'
17 1966 (2) SA 428 (A) at 430E-G.
Page 44
[66] As was emphasised by this Court in Sea Harvest Corporation (Pty) Ltd
and Another v Duncan Dock Cold Storage (Pty) Limited and Another:18
'[21]. . . it should not be overl ooked that in the ultimate an alysis the true criterion for
determining negligence is whether in the pa rticular circumstances the conduct complained
of falls short of the standard of the reasona ble person. Dividing the inquiry into various
stages, however useful, is no more than an aid or guideline for resolving this issue.
[22] It is probably so that there can be no universally applicable formula which will prove
to be appropriate in every case . . .
. . . it has been recognised that, while the precise or exact manner in which the harm occurs
need not be foreseeable, the general manner of its occurrence must indeed be reasonably
foreseeable.'
19
[67] Moreover, it must cons tantly be borne in mind that, in considering the
question as to what is reasonably foreseeable:
'. . . one must guard against what Williamson JA called "the insidious subconscious
influence of ex post facto knowledge" (in S v Mini 1963 (3) SA 188 (A) at 196E-F).
Negligence is not established by showing merely that the occurrence happened (unless the
case is one where res ipsa loquitur), or showing after it happened how it could have been
prevented. The diligens paterfamilias does not have "prophetic foresight" . . . In Overseas
Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) [1961] AC
388 (PC) ([1961] 1 All ER 404) Viscount Simonds said at 424 (AC) and at 414G-H (in All
ER) :
18 2000 (1) SA 827 (SCA) para 21-22 at 839G-840B.
19 See too the most recent Carmichele case (SCA) (supra) para 45 at 148G-149A.
Page 45
"After the event, even a fool is wise. But it is not the hindsight of the fool; it is the
foresight of a reasonable man which alone can determine the responsibility."'20
[68] Counsel for the first respondent submitted that Becker clearly had
training in CPR and had a fair knowle dge of the importance of CPR in a
situation such as the present. I am of the view that this has by no means been
established. In his examination in chie f, Becker testified that he had received
some CPR training in 1987 as part of his operational 'bush warfare' training,
but that this training did not cove r mouth-to-mouth resuscitation and was
directed to the treatment of wounded persons in a war situation. Becker
testified further that, in 1993, he had undergone a basic training course at the
military base and that, during this co urse, basic CPR principles had been
explained. However, no part of this course c oncerned the performance of
CPR on infants. It is significant to note that, during his cross-examination,
Becker was not questioned in any way as to the content of either course or as
to the actual extent of his knowle dge of CPR and matters connected
therewith. Moreover, as was submitted by counsel for the appellants, there is
no probative value in any allegation th at any reasonable person should and
would know that a near-drowning vic tim should be resuscitated until medical
20 See S v Bochris Investments (Pty) Ltd and Another 1988 (1) SA 861 (A) at 866J-867B, quoted in Sea
Harvest Corporation (supra) para 27 at 842G-H and in the most recent Carmichele case (SCA) (supra) para
45 at 149B-D.
Page 46
assistance arrives, because it is appa rently so propagated in the media,
particularly in so-called 'actuality progr ammes' on television. It is clear from
Becker's evidence that, at the time of the trial, and ha ving listened to the
expert evidence, he realised, with hindsight, that he should not have stopped
Kobus from performing CPR. However, at the time he examined the child, he
genuinely thought that Roald was dead, with no pulse, no breathing, fixed and
dilated pupils, very pale and ice-cold. In this regard, it is important to note
that both Sergeant Nel, who was a Level 3 emergency helper at the time, and
Mr Oosthuizen, a qualified paramedic, te stified that they had acquired their
knowledge regarding the importance of continuing with CPR on a near-
drowning victim until the victim revive s or until expert he lp arrives, during
the course of their specialised training.
[69] Both Dr Naudé and Professor Fritz, the expert witnesses who testified
for the respondents, acknowledged th at near-drowning victims do often
appear to be dead to persons without any proper medical training and that, in
such cases, it may be extremely difficult to detect any signs of life such as a
pulse, breathing, a heartbeat, or pupil re flexes of the eye. Dr Naudé agreed
that a layperson would consider that CPR was something to be performed on
somebody who was still alive. It is al so clear from the record that Kobus
himself observed no signs of life whatsoever in Roald after he had been
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removed from the pool and after CPR had been performed upon him for some
time. As Becker had no sp ecialised medical training and did not know at the
relevant time that CPR should be conti nued, in the case of a near- drowning
incident, until suitably medically qualified personnel arrived, I am of the view
that it cannot be concluded that Becker should, at the relevant time, have
realised that medical advances might be able to revive the child. Without any
specialised knowledge of the importance of CPR, it cannot, in my opinion, be
said that a reasonable person in Beck er's position would have foreseen the
reasonable possibility that an inte rruption of CPR on a child whom he
genuinely believed to be dead, or the c overing of such a child with a blanket
(which he believed to be the decen t and humane thing to do), could cause
further harm to Roald. To my mind, it cannot be said that the respondents
succeeded in establishing, on the requi site balance of probabilities, that
Becker's conduct on the day in question fell short of the standard of the
reasonable person in his position and with his knowledge.
[70] During the course of argument befo re this Court, reference was made
for the first time to the possi ble applicability of the maxim imperitia culpae
adnumeratur, ie that ‘it is negligent to e ngage voluntarily in any potentially
dangerous activity unless one has the skill and knowledge usually associated
Page 48
with the proper discharge of the du ties connected with such activity’. 21
However, as is evident from the case la w on the application of this maxim, it
applies only if the person undertaking the activity in question knows or ought
reasonably to know that he lacks the requisite expert know ledge or skill, so
that the undertaking of the task or th e engagement in the activity is itself
blameworthy.22 In the circumstances of th e present case, it was not, in my
view, established that Becker knew, or ought reasonably to have known, that
deciding that Roald was dead and acting accordingly - when the child showed
no signs of life whatsoever and when (as conceded by Dr Naudé) CPR would
be considered by a layperson as somethi ng to be performed on a live ‘patient’
– was something for which special know ledge was required and that he did
not have such knowledge. This being so, the maxim cannot be applied so as to
establish negligence on Becker’s part.
[71] Thus, as the first respondent did not, to my mind, succeed in proving,
on the requisite balance of probabilities, that Becker was negligent in his
conduct on the day in question, I would have allowed the appeal with costs
and would have amended th e order made by the court a quo so as to dismiss
21 J C van der Walt (revised by J R Midgley) ‘Delict’ 8 Lawsa Part 1 (reissue, 1995) para 94 and the
authorites there cited.
22 Ibid; see also J Neethling. J M Potgieter & P J Visser (edited by J C Knobel) Law of Delict 4 ed (2001)
137 and the cases cited by these writers.
Page 49
Mr Rudman’s action with costs. As this is a minority judgment, however, it is
not necessary for me to craft any order.
__________________________
B J VAN HEERDEN
ACTING JUDGE OF APPEAL
Page 50
FARLAM JA
[72] I have had the advantage of reading the judgment written by my
colleague Van Heerden AJA. While I agre e with her conclusion that Becker’s
positive action in preventing the con tinuance of the CPR which Kobus was
performing was unlawful and that his fa ilure himself to attempt CPR on the
child was not, I am unable to agree w ith her further conclusion that Becker
did not act negligently in doing what he did.
[73] In my opinion, by taking charge of the situation and giving what
amounted to an instruction to Kobus to discontinue CPR in circumstances
where, because of his ignorance, he did not appreciate that it was
inappropriate to do so, that there was a possibility that the child was still alive
and that the latter’s chances of making as full a recovery as was possible were
being reduced, Becker acted negligen tly. He knew that his own knowledge of
CPR was limited and he also knew that members of the police service whose
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knowledge in this regard was more extensive than his were on their way to the
scene. There was no necessity for him to interfere. If he had allowed Kobus to
continue with the CPR which Kobus was ad ministering, then it is clear that at
least some of the brain damage ultima tely sustained by Roald would not have
been caused.
[74] In other words Becker’s negligence consisted, not in being ignorant
about CPR and whether it could be of any assistance to a child who had
apparently drowned, but in undertaking the responsibility of deciding whether
it should be discontinued when he lacked the skill and knowledge required for
the proper exercise of the authority th at went with that responsibility: see
McKerron The Law of Delict 7 ed 38.
[75] In my opinion a reasonable pers on would not have undertaken the
responsibility, in the circumstances th en prevailing, to cause CPR to be
discontinued because he or she would ha ve appreciated the extent of his or
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her ignorance on the point. After all, the consequences of stopping the CPR
(which were potentially catastrophic if it was efficacious) were far more
serious than those of continuing with it (if it were not doing any good).
[76] This finding makes it necessary for me to consider the further question
as to whether Motata J was correct in holding that the Minister and Becker
were liable for the full amount of the damages suffered by Mr Rudman in his
personal and his represen tative capacities and that, vis-à-vis Bo, Becker was
liable for 80 per cent of the damages and Bo for 20 per cent.
[77] The medical witnesses all agreed that it was simply not medically
possible to determine to what extent the interruption of the CPR on Becker’s
instruction exacerbated the brain damage suffered by Roald and contributed to
his present condition.
[78] Motata J held that Becker’s neglig ence far exceeded that of Bo, that
Becker and Bo ‘were both concurrent wrongdoers at common law and joint
Page 53
wrongdoers for the purposes of the apportionment of damages’. He found that
Becker was 80 percent negligent and Bo 20 percent negligent, hence his
finding as to their respective percentage s of liability to which I have already
referred.
[79] I do not agree that Becker and Bo are to be regarded as ‘joint
wrongdoers for the purposes of appor tionment of damages’. The matter is
governed by s 2(1) of the Apportionmen t of Damages Act 34 of 1956, which
is in the following terms:
‘Where it is alleged that two or more persons are jointly or severally liable in delict to a
third person (hereinafter referr ed to as the plaintiff) for the same damage, such persons
(hereinafter referred to as joint wrongdoers) may be sued in the same action.’
As was held in Mkwanazi v Van der Merwe and Another 1970 (1) SA 609 (A)
at 622 B-D and Minister of Communications and Public Works v Renown
Food Products 1988 (4) SA 151 (C), to fall with in the Act the two defendants
must have caused ‘the same dama ge’ and, where tw o separate acts of
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negligence have caused different damage and resultant loss to a plaintiff, each
defendant is liable only for such damage as he or she ha s personally caused.
There is nothing in the Act which detracts from this position. See also
Rahman v Arearose Ltd and Another [2001] QB 351 (CA), a judgment of the
English Court of Appeal, to which couns el for the appellants referred, which
concerned the meaning of the expressi on ‘same damage’ in s 1(1) of the
United Kingdom Civil Liability (Contribution) Act 1978 (c 47). I shall return
to this matter later in this judgment after I have considered the extent to which
Bo is liable for all the damage suffered in this case.
[80] In the present case there was no basis for holding the Minister and
Becker liable, as Motata J did, for all the damage Roald suffered from the
time of his immersion in the swi mming pool. Becker did not cause his
immersion and he cannot be held liable for damage suffered prior to his
intervention when he caused the CPR be ing administered to the child to be
Page 55
stopped. He and the Minister (who is vicariously liable for his actions) can
only be held liable for the damage he caused.
[81] Where, in a case such as this, it is simply not possible to make an
allocation as to how much of the dama ge sustained was caused by the actions
of Becker as opposed to Bo and it is cl ear that all the available evidence has
been led on the point (the position ma y well be different when all the
available evidence has not been led: cf the Renown case at 154 F-G and I-J),
then it would seem that the court’s duty to do the best it can in such
circumstances (cf Esso Standard SA (Pty) Ltd v Katz 1981 (1) SA 964 (A) at
969 H-970 G and Caxton Ltd v Reeva Forman (Pty) Ltd 1990 (3) SA 547 (A)
at 573 I-J) will lead to a finding – as counsel for the appellants suggested
should be made in this case – that Beck er and the Minister are liable to pay
half of the damages proved to have been suffered. This is the third of the three
approaches discussed by Professor AM Honoré at p 72 of his monograph on
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‘Causation and Remoteness of Damage’, published as part of Volume XI of
the International Encyclopaedia of Comparative Law, and the one preferred
by him as commending itself ‘as the fair est to both parties’, an opinion with
which I respectfully agree.
[82] The first of the three approaches discussed by Professor Honoré is that
in terms of which a plaintiff is non-suited because he or she has failed to show
how much damage the particular wr ongdoer has caused. This approach is
contrary to the basic principle of our la w referred to in the cases I have cited
that, where a plaintiff proves that he or she has suffered some damage, in
respect of which all the available evidence on the point has been led, the court
does not non-suit such plaintiff but does the best it can (even if that best
amounts to no more than an estimate) to assess the damages suffered.
[83] In terms of the second approach discussed by Professor Honoré, a
successive wrongdoer is held liable for all the loss suffered because he or she
Page 57
cannot show what portion thereof such wrongdoer did not cause. This
involves putting an onus on the wr ongdoer or wrongdoers in question,
something which was in my view rightly rejected in the Renown case, supra
at 154 E-F.
[84] The next question to be considered is whether Bo is jointly and
severally liable for that portion of the total damage suffered by the plaintiff in
his personal and his representative cap acities for which the first and second
defendants are liable. That Bo was ne gligent is not disputed, nor can it be
disputed that he is liable for the dama ge suffered up to th e time when Becker
ordered the discontinuance of the CPR by Kobus. In my opinion Bo is also
liable for the damage sustained therea fter because the discontinuance cannot
be regarded as a novus actus interveniens. I say that because I am satisfied
that the discontinuance was an inherent risk created by Bo’s negligent acts
and was reasonably foreseeable by him: cf Kruger v Van der Merwe and
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Another 1966 (2) SA 266 (A) at 273 F-G.
[85] It is now convenient to return to th e question as to whether s 2 of Act
34 of 1956 applies to Bo and Becker in respect of that portion of the damage
for which Becker and the Minister are liable. It is true that for the reasons
given above, Bo is also liable for the damage to the infliction of which Becker
contributed, but I do not think that that makes Becker and Bo ‘joint
wrongdoers’ for the purposes of the Act.
[86] I say this because I am of the view that the expression ‘the same
damage’ in s 2 refers to all the damage suffered by the plaintiff in a case
falling under Chapter II of the Act: cf s 2 (6) (a), which gives a joint
wrongdoer against whom judgment is given ‘for the full amount of the
damage suffered by the plaintiff’ a right of recourse against any other ‘joint
wrongdoer’ to claim a contribution in respect of the other wrongdoer’s
responsibility for such damage based on the degree to which the latter was at
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fault in relation to the damage suffere d by the plaintiff, and to the damages
awarded. Where, as here, the judgment to be given against Becker and the
Minister is not for the full amount of the damage suffered by the plaintiff but
only for that part of the damage for whic h Becker is to be regarded as being
responsible, then the subsection does not apply and any right of recourse
available to Becker and the Minister will have to be sought in the common
law.
[87] If such a right does exist un der the common law, it may well amount
simply to a right to be reimbursed half of what Becker and/or the Minister are
liable to pay to the plaintiff, once this has been paid, and not to a proportion
based on the respective degrees of fault: cf Windrum v Neunborn 1968 (4)
SA 286 (T) at 289 H to 290 G.
[88] While counsel for the Minister a nd Becker attacked in argument Motata
J’s finding that the extent of Bo’s c ontribution to the damages to be paid by
Page 60
the Minister and Becker was 20% - a finding based on the assumption that the
Act applied and that the respective degr ees of fault of Bo and Becker were to
be determined - the wide r questions to be considered if the common law
applies were not argued. In the circum stances I do not consider it appropriate
to investigate, without the benefit of counsel’s submissions, the legal
questions left open in Windrum’s case, supra.
[89] In all the circumstances I am of the view that the appeal should be
allowed with costs.
[90] The following order is therefore made:
1. The appeal succeeds with costs.
2. Paragraphs 4 and 5 of th e order made by the court a quo are set aside
and the following paragraphs are substituted therefor:
‘4. It is declared that the first and second defendants are liable to the
plaintiff, jointly and severally, the one paying, the other to be absolved, for
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one half of the damages which the plain tiff may prove that he suffered in his
personal and in his representative capac ities as a result of the brain damage
sustained by his son Roald on 6 October 1997.
5. It is declared that the third party is jointly and severally liable with the
first and second defendants for the damages payable by them.’
__________________
IG FARLAM
JUDGE OF APPEAL
Concur:
MPATI DP