Lee v Minister of Correctional Services (CCT 20/12) [2012] ZACC 30; 2013 (2) BCLR 129 (CC); 2013 (2) SA 144 (CC); 2013 (1) SACR 213 (CC) (11 December 2012)

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[2012] ZACC 30
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Lee v Minister of Correctional Services (CCT 20/12) [2012] ZACC 30; 2013 (2) BCLR 129 (CC); 2013 (2) SA 144 (CC); 2013 (1) SACR 213 (CC) (11 December 2012)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 20/12
[2012]
ZACC 30
In
the matter between:
DUDLEY
LEE
.................................................................................................
Applicant
and
MINISTER
FOR CORRECTIONAL SERVICES
.......................................
Respondent
and
TREATMENT
ACTION CAMPAIGN
WITS
JUSTICE PROJECT
CENTRE
FOR APPLIED LEGAL STUDIES
..........................................
Amici
Curiae
Heard
on : 28 August 2012
Decided
on : 11 December 2012
JUDGMENT
NKABINDE
J (Moseneke DCJ, Froneman J, Jafta J and Van der Westhuizen J
concurring):
Introduction
Before
this Court is an application for leave to appeal against a decision
of the Supreme Court of Appeal
1
overturning a decision of the Western Cape High Court, Cape Town
2
(High Court). The High Court declared the respondent liable for the
delictual damages suffered by the applicant as a result of

contracting tuberculosis (TB) while in detention. Having rejected
the applicant’s claim on a narrow factual point on the

application of the test for causation, the Supreme Court of Appeal
upheld the respondent’s appeal and absolved her from

liability.
Primarily,
the case concerns whether the applicant’s detention and the
systemic failure to take preventative and precautionary
measures by
the Correctional Services authorities caused the applicant to be
infected with TB while in detention. The complaint
is that the
unlawful detention and specific omissions violated the applicant’s
right to freedom and security of the person
and the right to be
detained under conditions consistent with human dignity, and to be
provided with adequate accommodation,
nutrition and medical
treatment at state expense.
3
The question is whether the causation aspect of the common law test
for delictual liability was established and, if not, whether
the
common law needs to be developed to prevent an unjust outcome.
The
relief sought in this Court is essentially an order:
(a)
granting leave to appeal, upholding the appeal and setting aside the
order of the Supreme Court of Appeal; and
(b)
reinstating the High Court order.
In
the alternative to (a) and (b) above, the applicant seeks an order
allowing him to amend his particulars of claim to include
a claim for
constitutional damages based on alleged unlawful detention and
infringement of certain constitutional rights.
Parties
The
applicant is Mr Dudley Lee (Mr Lee or plaintiff). The respondent is
the Minister for Correctional Services (respondent or
responsible
authorities),
4
who is cited in her capacity as the Minister responsible for the
conduct of the Department of Correctional Services pursuant
to
certain provisions of the Correctional Services Act.
5
The Treatment Action Campaign, Wits Justice Project and Centre for
Applied Legal Studies, jointly represented by SECTION 27,
whose
written submissions have been most helpful and for which we are
grateful, were admitted as friends of the court (amici).
Facts
The
facts are set out elegantly in the judgment of the Supreme Court of
Appeal. I repeat those that are necessary for the purpose
of this
judgment and set out also the parties’ agreed statement of
factual findings with specific reference to portions
in the High
Court Judgment and the Supreme Court of Appeal Judgment.
6
The
applicant was incarcerated in the admission section at the maximum
security prison at Pollsmoor
7
(Pollsmoor) from 1999 to 2004,
8
but was released on bail for a period of approximately two months in
2000. He attended court on no fewer than 70 occasions. When
inmates
were transported for court attendance, they were stuffed into vans
like sardines. At court they were placed into cells
which were
jam-packed. Those who appeared before the regional court were taken
to a separate, smaller cell which was not overly
full.
9
For
most of his incarceration Mr Lee was housed in E-section of the
maximum security prison at Pollsmoor, a cell designed for
occupation
by one person but which he shared with two other inmates.
10
At one stage, inmates at E-Section, including the applicant, were
moved to the Medium B prison where they were detained in a
communal
cell with about 25 inmates for a period of time.
11
On being moved back to E-Section the applicant was held in a
communal cell until he was placed in a single cell again.
12
The
following appeared from the Statement of Agreed Factual Findings:
the applicant was not infected with TB when he arrived at
Pollsmoor;
the responsible authorities were “pertinently aware of the
risk” of inmates contracting TB;
13
TB is an airborne communicable disease which spreads easily
especially in confined, poorly ventilated and overcrowded
environments;
Pollsmoor is notoriously congested and inmates are
confined to close contact for as much as 23 hours every day –
this providing
ideal conditions for transmission;
14
on occasion, the lock-up total was as much as 3052 inmates and
single cells regularly housed three inmates; communal cells were

filled with double and sometimes triple bunks;
15
the responsible authorities relied on a system of inmates self
reporting their symptoms upon admission to the prison and during

incarceration; and the control of TB at Pollsmoor depends upon
effective screening of incoming inmates, the isolation of infectious

patients and the proper administration of the necessary medication
over the prescribed period of time.
16
The
Standing Correctional Orders
17
(SCOs), as summarised by the High Court, require inmates to be
subjected to the effective screening as set out in clauses 4.1(a),
18
4.4(a),
19
6.1,
20
6.2,
21
14 and 15
22
of Chapter 3 of the SCOs.
During
his incarceration the applicant regularly underwent sputum tests,
the results of which were negative until June 2003.
23
He was diagnosed with TB after three years of his incarceration.
24
Despite this diagnosis and the possibility that he would remain
contagious for at least another two weeks, the applicant was

returned to his cell where he was confined for up to 23 hours with
at least one other person. After his release in 2004, the
applicant
instituted an action for damages against the respondent in the High
Court.
High
Court
At
the commencement of the trial the parties asked the High Court to
separate the issues relating to liability from those relating
to the
quantum of damages. The issue relating to liability was decided
first, hence the declaratory order,
25
while quantum stood over for later determination.
26
It
is important to mention, with reference to the pleadings, how the
issues were defined by the parties in the High Court. The

applicant’s damages claim is said to have arisen as a result
of the responsible authorities’ negligent conduct,
alternatively
dolus eventualis
because they knew that their
conduct placed inmates, including the applicant, at risk of TB
infection.
27
It is pleaded that but for that unlawful conduct on the part of the
responsible authorities, the applicant would not have been
exposed
to inmates who were actively infected with TB and further would have
been treated and cured earlier.
28
In the premises, the applicant pleaded that it was the conduct of
the responsible authorities which caused his active infection
with
TB.
29
The
pleadings establish that the applicant was imprisoned at Pollsmoor
and that during the period of his imprisonment the responsible

authorities failed to take adequate, or any, steps to protect him
against the risk of TB infection; failed, once he was diagnosed
as
actively infected with TB, to provide him with adequate medical
treatment and medication to cure and prevent further spread
and to
adhere to his numerous requests for adequate treatment of TB. The
said conduct and omissions, it is pleaded, thus violated
the
applicant’s rights, including:
(a)
under the common law, specifically his right to respect for and
protection of his physical integrity;
(b)
in terms of the Bill of Rights, specifically the invasion of the
rights to:
(i)
human dignity under section 10;
30
(ii)
life under section 11;
31
(iii)
freedom and security of the person under section 12(1);
32
and
(iv)
be detained in conditions that are consistent with human dignity,
including at least exercise and the provision, at state expense,
of
adequate accommodation, nutrition, medical treatment in section
35(2)(e);
33
and
(c)
section 2(a) and (b) and section 12 under the Act
34
and its regulations.
The
High Court upheld the claim. It ruled in the applicant’s
favour regarding the evidence pertaining to the break-down
of the
health care system at Pollsmoor and the inadequacy of nutrition
which played a role in the development and uncontrollable
spread of
TB during the applicant’s incarceration. It held that the
responsible authorities’ omission(s) constituted
a negligent
breach of its constitutional and statutory duty to protect the
applicant’s rights.
35
The High Court held that the evidence tendered established that TB
could be curtailed by introducing certain measures including:

(i) early identification of persons who are deteriorating and
who may accordingly become vulnerable to contracting TB; (ii)
early
diagnosis of the disease; and (iii) effective treatment and
proper nutrition.
The
High Court said that those measures would translate into—
(a)
the proper screening of incoming inmates, inclusive of a physical
chest examination;
(b)
separating those who had or were suspected of having TB or were
obviously undernourished and vulnerable to TB;
(c)
the provision of adequate nutrition to those who were undernourished
and otherwise vulnerable to TB;
(d)
regular and effective screening of the prisoner population, inclusive
of examinations by means of x-rays and/or physical chest
examinations
by means of a stethoscope, to identify possible TB infection; and
(e)
isolation of infectious inmates and effective implementation of the
DOTS
36
system over the prescribed period of time.
These
measures, the High Court said, were dependent on sufficient numbers
of nursing staff and doctors available to perform the
various tasks.
However, the shortage of nursing staff had been a major problem at
Pollsmoor. The High Court concluded that—
“
as
staff shortages remained a problem throughout the time of the
[applicant’s] incarceration . . . a reasonable person in
the
[respondent’s] position would have realised that adequate
staffing was the key to the prevention and control of TB and
would
have taken steps to ameliorate the staff shortages . . . [and] would
have isolated all of the persons who were in the infectious
stage of
TB.”
37
The
Court declared the respondent liable to the applicant in delict and
ordered her to pay costs.
Supreme
Court of Appeal
On
appeal, the Supreme Court of Appeal confirmed the High Court’s
findings regarding the responsible authorities’
failure to
have taken reasonably adequate precautions against contagion and
held that such failure ought indeed to be categorised
as wrongful.
38
It held that:
“
A
person who is imprisoned is delivered into the absolute power of the
state and loses his or her autonomy. A civilised and humane
society
demands that when the state takes away the autonomy of an individual
by imprisonment it must assume the obligation to see
to the physical
welfare of its prisoner. We are such a society and we recognise that
obligation in various legal instruments. One
is s 12(1) of the [Act],
which obliges the prison authorities to ‘provide, within its
available resources, adequate health
care services, based on the
principles of primary care, in order to allow every inmate [of a
prison] to lead a healthy life’.
The obligation is also
inherent in the right given to all prisoners by s 35(2)(e) of the
Constitution to ‘conditions of detention
that are consistent
with human dignity’.”
39
It
went further and held that:
“
Prisoners
are amongst the most vulnerable in our society to the failure of the
state to meet its constitutional and statutory obligations.
It seems
to me that there is every reason why the law should recognise a claim
for damages to vindicate their rights. To find otherwise
would
altogether negate those rights.”
40
Regarding
the question of negligence, the Supreme Court of Appeal relied on
the classic test expressed in
Kruger v Coetzee.
41
In that case the Court held that negligence arises if a reasonable
person: (a) would have foreseen the reasonable possibility
of his
conduct injuring another person and causing him harm; (b) would have
taken reasonable steps to guard against such occurrence;
and (c) the
defendant failed to take such steps. The Supreme Court of Appeal
then concluded:
“
The
prison authorities were well aware that prisoners might contract [TB]
if reasonable steps were not taken to prevent it. I think
I have made
it clear earlier . . . that the evidence establishes convincingly
that to the extent that any system existed at all
for the proper
management of the disease its application in practice was at best
sporadic and in at least some respects effectively
non-existent. . .
. I need only say that I agree with the court below that the prison
authorities failed to maintain an adequate
system for management of
the disease and in that respect they were negligent.”
42
The
last issue was causation. The Supreme Court of Appeal cautioned that
it ought not to be overlooked that recognition of a delictual
remedy
will not impose obligations on the state that will be too onerous to
fulfil and that what is required is no more than
reasonable conduct
on its part.
43
It held that for the applicant to succeed he “must establish
that it is probable that the negligent conduct caused the
harm”
44
and that the test in this regard is “whether but for the
negligent act or omission of the [respondent] the event giving
rise
to the harm in question would have occurred.”
45
The
Supreme Court of Appeal relied on the test formulated in
International Shipping Co (Pty) Ltd v Bentley
46
for its use of a substitution exercise to determine factual
causation in terms of the but-for test. It applied a reasonableness

test and held that “proof alone that reasonable precautions
were not taken to avoid foreseeable harm, and that the harm

occurred, does not establish that the former caused the latter.”
47
It remarked, in relation to the standard for determining
culpability, that—
“
it
cannot be gainsaid that a consistent system of some kind at least was
required to screen prisoners, isolate any that were found
to be
contagious, and administer treatment. I have already found that if
any system existed at all its application in practice
was at best
sporadic and in at least some respects non-existent. On any standard
that falls short of what ought reasonably to have
been done. But
while that failure on any standard is sufficient to find that the
prison authorities were negligent it is not sufficient
for
determining whether the harm was caused by the omission. What needs
to be established in addition is what the prison authorities
ought to
have done: only from there can one proceed to the enquiry whether
that would have prevented Mr Lee being infected.”
48
The
Supreme Court of Appeal agreed with the High Court’s
sentiments about ‘reasonable measures’ that ought to

have been taken to prevent and control TB
49
but found that the question in each case is what would have been
reasonable.
50
It held that “while proper screening procedures for incoming
[inmates] are no doubt required, that begs the question what

procedures might reasonably be expected in a large and congested
prison.”
51
The Court then dealt with the factors that would need to be balanced
against one another to determine what might reasonably be
expected
in a large prison.
52
It held that the responsible authorities cannot “reasonably be
expected to examine some 4000 prisoners with such regularity
and
thoroughness that [TB] will always be detected before the prisoner
becomes contagious.”
53
Self-reporting, the Supreme Court of Appeal said, “will
necessarily be the only means for its detection in many cases.”
54
The
Supreme Court of Appeal found, that “it is just as likely as
not that Mr Lee was infected by [an inmate] who the [responsible]

authorities could not reasonably have known was contagious.”
55
It concluded that the applicant’s difficulty is that—
“
he
does not know the source of his infection. Had he known its source it
is possible that he might have established a causal link
between his
infection and specific negligent conduct on the part of the
[responsible] authorities. Instead he has found himself
cast back
upon systemic omission. But in the absence of proof that reasonable
systemic adequacy would have altogether eliminated
the risk of
contagion, which would be a hard row to hoe, it cannot be found that
but for the systemic omission he probably would
not have contracted
the disease. On that ground . . . the claim ought to have failed.”
56
In
upholding the appeal, the Supreme Court of Appeal found that the
applicant failed on a narrow factual point on the application
of the
but-for test, but was successful on all other elements of the
delictual claim, including that Mr Lee was probably infected
by a
prisoner who had active TB while he was incarcerated.
57
In
this Court
The
issue relates primarily to the approach adopted by the Supreme Court
of Appeal to the question of causation. It is contended
by the
applicant that the Supreme Court of Appeal was wrong in holding that
causation had not been established and that it failed
to follow the
approach in
Minister of Safety and Security v Van Duivenboden
58
regarding the standard of proof required of an applicant in
establishing the existence of a causal nexus.
In
the alternative to the delictual claim as pleaded, the applicant
sought to amend his pleadings to introduce a claim based on
unlawful
detention for constitutional damages in the amount of R200 000
based on the same facts regarding the unlawful conduct.
It was
contended that the Supreme Court of Appeal misdirected itself by
failing to import both restraints of sections 12 and
35 of the
Constitution into the concept of wrongfulness against which
negligent causation of harm stands to be tested in any
claim for
delictual damages. The applicant argued that he was denied an
effective substantive remedy under section 34 of the
Constitution.
The
amici applied to introduce two documents in accordance with Rule 31
of the Constitutional Court Rules. The first document
relates to the
report of the Judicial Inspectorate setting out,
inter alia
,
TB fatalities in prisons and information on overcrowding. The second
document is an expert scientific study which confirms and
quantifies
the nature and extent of the risk created by the conditions of
imprisonment to which the applicant was subjected and
to which many
inmates continue to be subjected.
They
contended further that the approach adopted by the Supreme Court of
Appeal is flawed in two respects: first, the application
of the
but-for test is inconsistent with the articulation of the test in
Van Duivenboden
and second, if on the correct application of
the test the applicant will not be entitled to relief, the but-for
test should be
developed in accordance with the spirit, purport and
objects of the Bill of Rights, specifically sections 27, 34 and 35
read
with sections 172 and 173 of the Constitution, as well as the
norms and values which underlie the Constitution. In addition, the

amici do not reject the “prudent and fair” approach that
the common law test is meant to engender. Rather, it is
concerned
with what appears to be a mechanical application of the test which
results in an injustice.
The
respondent contended that the amendment to introduce an alternative
claim for constitutional damages should be disallowed
because that
raises a new cause of action for the first time on appeal. It was
contended that the applicant has failed to provide
a basis for the
amendment and that, in any event, constitutional damages have only
been awarded where the remedy at common law
would ordinarily not
have been available. The respondent contended that she would be
prejudiced if the amendment is allowed without
affording her an
opportunity to raise a defence of prescription, alternatively that
the matter was governed by a binding judicial
decision (
res
judicata
). In the circumstances, she may be compelled to adduce
new evidence to defend her position.
As
regards the application to introduce new evidence under Rule 31, the
respondent argued that leave should not be granted because
the
evidence sought to be introduced is not common cause or otherwise
incontrovertible and capable of easy verification and is,
in certain
respects, at odds with the factual conclusions of the High Court and
the Supreme Court of Appeal. The respondent denied
that section 34
is violated. It was argued that the Supreme Court of Appeal’s
decision must be upheld.
Issues
The
preliminary issues relate to: (a) leave to appeal; (b) introduction
of new evidence; and (c) an application for an amendment
to
introduce a claim for constitutional damages based on unlawful
detention (alternative residual relief). Issues on the merits
relate
to: (i) whether the negligent conduct of the responsible authorities
was the cause of harm suffered by the applicant;
if not, (ii)
whether the common law regarding causation should be developed to
give effect to the spirit, purport and objects
of the Bill of
Rights; and (iii) the determination of costs.
Leave
to appeal
This
matter falls within the jurisdiction of this Court. The
applicant sought to vindicate his right to freedom and security of
the
person under section 12(1) and right to be detained under
conditions that are consistent with human dignity, including at
least
to be provided with adequate accommodation, nutrition and
medical treatment under section 35(2)(e) of the Constitution.
59
In addition, based on the state’s inherent constitutional
obligations,
60
the constitutional norms of accountability and responsiveness
61
are, in my view, implicated.
The
matter is of importance, not only to the parties, but also to other
inmates and the health sector generally. It is thus in
the interests
of justice that leave to appeal should be granted.
New
evidence
The
amici sought leave to introduce new evidence of two documents under
Rule 31. It is alleged that the evidence is relevant for
the
determination of the issues. The first document is an extract from
the
Annual Report 2010/2011: Treatment of Inmates and Conditions
in Correctional Centres
(Annual Report). The Annual Report
provides information on ten Correctional Centre clusters reporting
the most deaths. In seven
of these, TB was the number one cause of
natural deaths. It also contains information on overcrowding, which
according to the
agreed statement of facts, is one of the primary
drivers of TB transmission. The Annual Report, it was argued, will
enable this
Court to develop a better understanding of the impact
its decision will have beyond the parties. The second document is a
scientific
study entitled
Tuberculosis in a South African prison
– a transmission modelling analysis
(Study) on the risk of
TB contagion under prevailing conditions at Pollsmoor and what it
would take to reduce the risk of TB
transmission. The Study also
shows why it is impossible to establish, with precision, the source
of a TB infection.
Rule
31 provides:
“
(1)
Any party to any proceedings before the Court and an
amicus
curiae
properly admitted by the Court in any proceedings shall be entitled,
in documents lodged with the Registrar in terms of these rules,
to
canvass factual material that is relevant to the determination of the
issues before the Court and that does not specifically
appear on the
record: Provided that such facts—
(a)
are common cause or otherwise incontrovertible; or
(b)
are of an official, scientific, technical or statistical nature
capable of easy verification.
(2)
All other parties shall be entitled, within the time allowed by these
rules for responding to such document, to admit, deny,
controvert or
elaborate upon such facts to the extent necessary and appropriate for
a proper decision by the Court.”
62
The
evidence in the Annual Report sought to be introduced should, in my
view, be disallowed because it is not relevant to the
determination
of the issues. Similarly, the evidence contained in the Study should
be disallowed because its introduction does
not meet the threshold
requirement of being incontrovertible or common cause or capable of
easy verification as envisaged in
Rule 31. Accordingly, I would
dismiss the application to introduce further evidence.
Alternative
residual relief
Part
of the controversy on appeal related to the shift in the cause of
action from the relief initially sought. The applicant
sought
permission to amend his particulars of claim to introduce an
alternative claim for constitutional damages on appeal as
a result
of his unlawful detention. He pleaded that the detention was the
cause of his contracting TB. It is noteworthy that
the applicant
accepted that this new claim was not raised in the High Court.
63
The
granting of an amendment and allowing a claim for constitutional
damages at this stage of appeal proceedings will be prejudicial
to
the respondent. New evidence may have to be presented. Apart from
the fact that the raising of a new claim on appeal raises
procedural
and evidential difficulties, it is generally not in the interests of
justice for this Court to sit as a court of first
and final instance
on appeal.
64
Accordingly, the application should be dismissed.
Causation
The
Supreme Court of Appeal dealt with the elements of a delictual claim
and confirmed the High Court’s finding regarding
wrongfulness
in relation to the responsible authorities’ failure “to
have reasonably adequate precautions against
contagion, which was
the foundation of the claim.”
65
I agree with the Supreme Court of Appeal that there was a negligent
breach on the part of the responsible authorities for failing
to
maintain an adequate system for management of TB.
66
The next prong of the inquiry is, however, whether the negligent
omission caused the applicant harm – in becoming
infected
with TB. This is so because it is only causal negligence that can
give rise to legal responsibility.
67
The
point of departure is to have clarity on what causation is. This
element of liability gives rise to two distinct enquiries.
The first
is a factual enquiry into whether the negligent act or omission
caused the harm giving rise to the claim. If it did
not, then that
is the end of the matter. If it did, the second enquiry, a juridical
problem, arises. The question is then whether
the negligent act or
omission is linked to the harm sufficiently closely or directly for
legal liability to ensue or whether
the harm is too remote.
68
This is termed legal causation.
This
element of liability is complex and is surrounded by much
controversy. There can be no liability if it is not proved, on
a
balance of probabilities,
69
that the conduct of the defendant caused the harm. This is so
because the net of liability will be cast too wide. A means of

limiting liability, in cases where factual causation has been
established, must therefore be applied. Whether an act can be
identified as a cause depends on a conclusion drawn from available
facts or evidence and relevant probabilities. Factual causation,

unlike legal causation where the question of the remoteness of the
consequences is considered, is not in itself a policy matter
but
rather a question of fact which constitutes issues connected with
decisions on constitutional matters as contemplated by
section
167(3)(b) of the Constitution.
70
Although
different theories have developed on causation,
71
the one frequently employed by courts in determining factual
causation, is the
conditio sine qua non
theory or but-for
test.
72
This test is not without problems, especially when determining
whether a specific omission caused a certain consequence. According

to this test the enquiry to determine a causal link, put in its
simplest formulation, is whether “one fact follows from

another.”
73
The test—
“
may
involve the mental elimination of the wrongful conduct and the
substitution of a hypothetical course of lawful conduct and the

posing of the question as to whether upon such an hypothesis
plaintiff’s loss would have ensued or not. If it would in any

event have ensued, then the wrongful conduct was not a cause of the
plaintiff’s loss; [otherwise] it would not so have ensued.
If
the wrongful act is shown in this way not to be a
causa
sine qua non
of
the loss suffered, then no legal liability can arise.”
74
In
the case of “positive” conduct or commission
75
on the part of the defendant, the conduct is mentally removed to
determine whether the relevant consequence would still have

resulted.
76
However, in the case of an omission the but-for test requires that a
hypothetical positive act be inserted in the particular
set of
facts, the so-called mental removal of the defendant’s
omission. This means that reasonable conduct of the defendant
would
be inserted into the set of facts.
77
However, as will be shown in detail later, the rule regarding the
application of the test in positive acts and omission cases
is not
inflexible. There are cases in which the strict application of the
rule would result in an injustice, hence a requirement
for
flexibility. The other reason is because it is not always easy to
draw the line between a positive act and an omission.
78
Indeed there is no magic formula by which one can generally
establish a causal nexus. The existence of the nexus will be
dependent
on the facts of a particular case.
79
As
is evident from the statement of agreed facts, the applicant was not
infected with TB when he was admitted to Pollsmoor. It
is common
cause that, on the evidence on record, it is more probable than not
that Mr Lee contracted TB in prison, rather than
outside it. The
Supreme Court of Appeal Judgment proceeded on an acceptance of this
probability,
80
but it non-suited Mr Lee on the basis that he failed to prove that
reasonable systemic adequacy would have “altogether

eliminated” the risk of contagion, that he does not know the
source of his infection and that had he known the source it
is
possible that he might have been able to establish a causal link
between his infection and the specific negligent conduct
on the part
of the responsible authorities.
81
In
my respectful view the Supreme Court of Appeal erred in adopting
that approach. The reasons for this are twofold. First, it
was not
necessary for the substitution of reasonable alternative measures to
determine factual causation because our law allows
for a more
flexible approach. Second, even if the use of a reasonable
alternative substitution was necessary in the circumstances,
our law
does not require evidentiary proof of the alternative, but merely
substitution of a notional and hypothetical lawful,
non-negligent
alternative. The purpose of the exercise is to evaluate the evidence
presented by a plaintiff, not to require more
evidence. If the
substitution exercise is done in this way, probable factual
causation is established.
The
Supreme Court of Appeal approached the matter on the basis that in
the case of an omission the issue of factual causation
by definition
involves an obligation on a defendant to initiate reasonable action,
which a plaintiff needs to establish as an
alternative in order to
determine what would have happened if that had occurred.
82
The Court found that Mr Lee failed to do so.
83
It went further and applied a rigid deductive logic that
necessitated the conclusion that, because Mr Lee did not know the

exact source of his infection, he needed to show that “reasonable
systemic adequacy would have altogether eliminated the
risk of
contagion”.
84
I
emphasise that our law requires neither the inflexible application
of a substitution exercise in the application of the but-for
test,
nor the inflexible kind of logic used by the Supreme Court of Appeal
in its application of that test. In addition, the
wrong done to Mr
Lee is not treated as a mere omission. In what follows I will
attempt to justify these propositions. Like other
jurisdictions our
courts have also struggled to come to terms with the difficulties of
causation. It is not necessary to chart
that development in our law,
as it is now settled and, as stated, sufficient and flexible enough
to dispose of this case. This
flexibility has a long history, and
has never been discarded.
In
Kakamas
85
it was stated that “[c]ausality often raises difficult legal
questions which cannot always be answered by strict adherence
to
logic. Recourse may sometimes be had to what [the House of Lords]
called the law’s ‘empirical or common-sense
view of
causation’”.
86
In
Siman
87
the minority judgment noted that “[f]inally, as in other
problems relating to causation in delict, in applying the ‘but-for’

test the Court should not overlook the importance of applying common
sense standards to the facts of the case”.
88
The
most recent, post-constitutional affirmations of that flexibility
are to be found in
Van Duivenboden
89
and
Gore
.
90
In
Gore
the approach adopted in discharging the onus in
relation to factual causation was described thus:
“
With
reference to the
onus
resting on plaintiff, it is sometimes said that the prospect of
avoiding the damages through the hypothetical elimination of the

wrongful conduct must be more than 50%. This is often followed by the
criticism that the resulting all-or-nothing effect of the
approach is
unsatisfactory and unfair. A plaintiff who can establish a 51%
chance, so it is said, gets everything, while a 49%
prospect results
in total failure. This, however, is not how the process of legal
reasoning works. The legal mind enquires: What
is more likely? The
issue is one of persuasion, which is ill–reflected in formulaic
quantification. The question of percentages
does not arise (see to
this effect Baroness Hale in
Gregg
v Scott
).
91
Application of the ‘but for’ test is not based on
mathematics, pure science or philosophy. It is a matter of common

sense, based on the practical way in which the ordinary person’s
mind works against the background of everyday-life experiences.
Or,
as was pointed out in similar vein by Nugent JA in
Minister
of Safety and Security v Van Duivenboden
:
‘
A
plaintiff is not required to establish the causal link with
certainty, but only to establish that the wrongful conduct was
probably
a cause of the loss, which calls for a sensible
retrospective analysis of what would probably have occurred, based
upon the evidence
and what can be expected to occur in the ordinary
course of human affairs rather than metaphysics.’”
92
It
is useful to have a close look at what the Appellate Division said
in
Siman
93
regarding the application of the substitution exercise:
“
As
was pointed out by this Court in
Minister
of Police v Skosana
1977 (1) SA 31
(A) at 34F-35D, 43D-44F, causation in the law of
delict involves two distinct enquiries: (i) whether the defendant’s
wrongful
act was a cause in fact of the plaintiff’s loss; and
(ii) if so, whether and to what extent the defendant should be held
liable for the loss sustained by the plaintiff (this latter enquiry
often being referred to as the question of the remoteness of
damage).
In Joubert
The
Law
of South Africa
vol 8 title “Delict” (by Prof J C van der Walt) paras
47-49, the terms ‘factual causation’ and ‘legal

causation’ are used to denote the concepts underlying these two
enquiries. They seem to be convenient labels.
In
the present case the problem revolves essentially round the question
of factual causation . . ..
The
enquiry as to factual causation generally results in the application
of the so-called ‘but-for’ test, which is designed
to
determine whether a postulated cause can be identified as a
causa
sine qua non
of the loss in question. This test is applied by
asking whether but for the wrongful act or omission of the defendant
the event
giving rise to the loss sustained by the plaintiff would
have occurred. In a case such as the present one, which is
uncomplicated
by concurrent or supervening causes emanating from the
wrongful conduct of other parties . . . the but-for or,
causa sine
qua non
, test is, in my opinion, an appropriate one for
determining factual causation.
In
order to apply this test one must make a hypothetical enquiry as to
what probably would have happened but for the unlawful act
or
omission of the defendant. In some instances this enquiry may be
satisfactorily conducted merely by mentally eliminating the
unlawful
conduct of the defendant and asking whether, the remaining
circumstances being the same, the event causing harm to plaintiff

would have occurred or not. If it would, then the unlawful conduct of
the defendant was not a cause in fact of this event; but
if it would
not have so occurred, then it may be taken that the defendant’s
unlawful act was such a cause. This process of
mental elimination may
be applied with complete logic to a straightforward positive act
which is wholly unlawful. So, to take a
very simple example, where A
has unlawfully shot and killed B, the test may be applied by simply
asking whether in the event of
A not having fired the unlawful shot
(ie by a process of elimination) B would have died. In many
instances, however, the enquiry
requires the substitution of a
hypothetical course of lawful conduct for the unlawful conduct of the
defendant and the posing of
the question as to whether in such case
the event causing harm to the plaintiff would have occurred or not; a
positive answer to
this question establishing that the defendant’s
unlawful conduct was not a factual cause and a negative one that it
was a
factual cause. This is so in particular where the unlawful
conduct of the defendant takes the form of a negligent omission. In
The Law of South Africa
(
ibid
para 48) it is suggested
that the elimination process must be applied in the case of a
positive act and the substitution process
in the case of an omission.
This should not be regarded as an inflexible rule. It is not always
easy to draw the line between a
positive act and an omission, but in
any event there are cases involving a positive act where the
application of the but-for rule
requires the hypothetical
substitution of a lawful course of conduct (cf Prof A M Honoré
in 11
International Encyclopaedia of Comparative Law
c 7 at
74-6).”
94
What
we may glean from
Siman
is that substitution as part of the
application of the but-for test may not be apposite where there may
be concurrent or supervening
causes; that it should not be applied
inflexibly; that drawing the line between a positive act and an
omission is not always
easy to do; and, finally, that even in the
application of the but-for test common sense may have to prevail
over strict logic.
95
What is more, the majority in
Siman
considered it wrong or
inappropriate to apply the substitution exercise of a hypothetical
course of lawful conduct for unlawful
conduct.
96
The minority characterised
97
examples in other South African cases
98
and a New Zealand case
99
as instances of the substitution process of reasoning. In
LAWSA
,
100
the authors think that it might be better to characterise them as
illustrating the point that “common-sense standards should
be
used where the but-for test proves to be inadequate”.
101
Our
existing law does not require, as an inflexible rule, the use of the
substitution of notional, hypothetical lawful conduct
for unlawful
conduct in the application of the but-for test for factual
causation.
102
There
is, in my view, an additional reason why one should be cautious when
applying the substitution test in our law of factual
causation. The
substitution exercise of determining hypothetical lawful conduct
involves an evaluation of normative considerations.
The
determination of a question of fact, although it is also an
evaluative exercise, cannot depend on social and policy
considerations.
103
Even though the purpose of using the normatively determined lawful
conduct as an alternative is not primarily aimed at making
an “is”
question an “ought” question, it seems to me that it
inevitably makes it at least a mixed question
of fact and law. The
distinction between factual and legal causation made in our law
becomes unnecessarily less clear.
It
is apparent from the minority judgment in
Siman
104
and the judgment in
International Shipping
,
105
that delictual liability for omissions, still a recent development
then,
106
was a matter of some concern. In the former the Court made it clear
that the substitution test might find particular application
in
relation to omissions and in the latter it referred explicitly to
the danger of limitless liability that needs to be kept
within
reasonable bounds by “giving proper attention to, inter alia,
the problem of causation”.
107
But
since then our law relating to the development of wrongfulness as a
criterion for determining the boundaries of delictual
liability has
moved on. In
Ewels
108
it was held that our law had reached the stage of development where
an omission is regarded as unlawful conduct when the circumstances

of the case are of such a nature that the legal convictions of the
community demand that the omission should be considered wrongful.
109
This open-ended general criterion has since evolved into the general
criterion for establishing wrongfulness in all cases, not
only
omission cases. The imposition of wrongfulness under this enquiry is
determined with reference to considerations of public
and legal
policy, consistent with constitutional norms.
110
The general criterion of “reasonableness” in the
wrongfulness enquiry concerns the reasonableness of imposing
liability
on the defendant and not the reasonableness of the
defendant’s conduct, which is an element of the separate
negligence
enquiry.
111
There is thus no pressing need to contaminate the factual part of
the causation enquiry with these kinds of normative considerations

based on social and policy considerations.
As
noted earlier in
Siman
, it “is not always easy to draw
the line between a positive act and an omission”.
112
The wrong Mr Lee complains of is, in our law, based on being
detained in conditions that infringe upon his dignity. That was
the
position under our pre-constitutional common law,
113
and that has received constitutional support in section 35(2)(e) of
the Constitution
114
that provides that detained persons have the right “to
conditions of detention that are consistent with human dignity”.
115
There
was thus nothing in our law that prevented the High Court from
approaching the question of causation simply by asking whether
the
factual conditions of Mr Lee’s incarceration were a more
probable cause of his tuberculosis, than that which would
have been
the case had he not been incarcerated in those conditions. That is
what the High Court did and there was no reason,
based on our law,
to interfere with that finding.
Even
if one accepts that the substitution approach is better suited to
factual causation, the preceding discussion shows that
there is no
requirement that a plaintiff must adduce further evidence to prove,
on a balance of probabilities, what the lawful,
non-negligent
conduct of the defendant should have been. All that is required is
“the substitution of a hypothetical course
of lawful conduct
and the posing of the question as to whether upon such a hypothesis
the plaintiff’s loss would have ensued
or not”.
116
What is required is postulating hypothetical lawful, non-negligent
conduct,
117
not actual proof of that conduct. The law recognises science in
requiring proof of factual causation of harm before liability
for
that harm is legally imposed on a defendant, but the method of proof
in a court room is not the method of scientific proof.
The law does
not require proof equivalent to a control sample in scientific
investigation.
Postulating
hypothetical lawful, non-negligent conduct on the part of a
defendant is thus a mental exercise in order to evaluate
whether
probable factual causation has been shown on the evidence presented
to court. It is not a matter of adducing evidence,
as the Supreme
Court of Appeal appears to have found.
118
I accept that the postulate must be grounded on the facts of the
case, but that is not the same as saying that there is a burden
on
the plaintiff to adduce specific evidence in relation thereto.
What
was required, if the substitution exercise was indeed appropriate to
determine factual causation, was to determine hypothetically
what
the responsible authorities ought to have done to prevent potential
TB infection, and to ask whether that conduct had a
better chance of
preventing infection than the conditions which actually existed
during Mr Lee’s incarceration. Substitution
and elimination in
applying the but-for test is no more than a mental evaluative tool
to assess the evidence on record. In my
view, this hypothetical
exercise shows that probable causation has been proved.
That
there is a duty on Correctional Services authorities to provide
adequate health care services, as part of the constitutional
right
of all prisoners to “conditions of detention that are
consistent with human dignity”,
119
is beyond dispute. It is not in dispute that in relation to
Pollsmoor the responsible authorities were aware that there was an

appreciable risk of infection and contagion of TB in crowded living
circumstances. Being aware of that risk they had a duty to
take
reasonable measures to reduce the risk of contagion.
Although
I accept that a reasonably adequate system may not have “altogether
eliminated the risk of contagion”,
120
I do not think that the practical impossibility of total elimination
is a reason for finding that there was no duty at least
to reduce
the risk of contagion. It seems to me that if a non-negligent system
reduced the risk of general contagion, it follows
– or at
least there is nothing inevitable in logic or common sense to
prevent the further inference being made –
that specific
individual contagion within a non-negligent system would be less
likely than in a negligent system. It would be
enough, I think, to
satisfy probable factual causation where the evidence establishes
that the plaintiff found himself in the
kind of situation where the
risk of contagion would have been reduced by proper systemic
measures.
121
In
postulating the hypothetical non-negligent conduct needed for the
substitution exercise, the SCOs
122
provide helpful guidance.
123
The minimisation of risk of contagion is largely dependent on the
effective screening of incoming prisoners and the isolation
of
infectious patients. The SCOs provide for screening for medical
problems by a registered nurse on admission and for a medical

examination within 24 hours by a registered nurse, medical officer
or medical practitioner. They also make special provision
for the
immediate reporting of communicable or contagious diseases and for
the isolation of persons with these diseases. There
is nothing on
record to suggest that this kind of screening, examination and
isolation in terms of the SCOs would not have been
effective in
reducing the risk of infection and contagion of a disease like TB –
indeed the case the authorities initially
sought to present was that
the process was properly followed.
124
It does not require much imagination to postulate that adherence to
the SCOs may constitute the non-negligent conduct necessary
for the
substitution exercise.
The
Supreme Court of Appeal acknowledged that an effective programme did
not exist during Mr Lee’s incarceration, as evidenced
by
superficial initial screening and the failure to isolate inmates who
had TB. If the proper process had been followed, this
would not have
happened. In my view, it is legitimate to draw the inference that
this is also probably how Mr Lee contracted
the disease. As I
understand the logic of the Supreme Court of Appeal’s
approach, it is not possible to make this kind
of inference of
likely individual infection from the fact that a non-negligent
system of general systemic control would generally
reduce the risk
of contagion. I do not agree.
The
implication of that kind of inexorable logic is that factual
causation under our law can never be proved where the specific

incident or source of infection cannot be identified. This means
that even wrongful and negligent conduct of correctional facility

authorities can by no means, in those instances, lead to delictual
liability. Fortunately, in my view, our law relating to factual

causation does not require that kind of inflexibility in determining
factual causation.
In
Van Duivenboden
,
125
the Supreme Court of Appeal correctly remarked that the state has a
positive constitutional duty under section 7(2) of the Constitution
126
to act in protection of the rights in the Bill of Rights.
127
The Supreme Court of Appeal in that case went on to say that where a
state, as represented by the persons who perform functions
on its
behalf, acts in conflict with its constitutional duty to protect
those who are “delivered into [its] absolute power”
128
,
the norm of accountability must of necessity assume an important
role in determining whether a legal duty ought to be recognised
in
any particular case.
129
I cannot agree more with these sentiments.
It
is indeed so that “[p]risoners are amongst the most vulnerable
in our society to the failure of the state to meet its

constitutional and statutory obligations”,
130
and that “a civilised and humane society demands that when the
state takes away the autonomy of an individual by imprisonment
it
must assume the obligation . . . inherent in the right . . . to
‘conditions of detention that are consistent with human

dignity’.”
131
I thus agree that “there is every reason why the law should
recognise a claim for damages to vindicate [the prisoners’]

rights”.
132
To suggest otherwise, in circumstances where a legal duty exists to
protect Mr Lee and others similarly placed, will fail to
give effect
to their rights to human dignity, bodily integrity and the right to
be detained in conditions that are consistent
with human dignity
under the Constitution, including at least exercise and the
provision, at state expense, of adequate accommodation,
nutrition,
and medical treatment. I stress that on the approach adopted by the
Supreme Court of Appeal it is unlikely that any
inmate
will
ever be able to overcome the hurdle of causation and further, no
effective alternative remedy will be available to a person
in the
position of the applicant.
In
any event, the Supreme Court of Appeal accepted the following as
true, that:
“
[reasonable
measures] [in
casu
]
would translate into the proper screening of incoming [inmates],
inclusive of a physical chest examination; separating out those
who
had, or were suspected of having TB, or who were obviously under
nourished and vulnerable to TB; the provision of adequate
nutrition
to those who were undernourished and otherwise vulnerable to TB;
regular and effective screening of the prisoner population,
inclusive
of examinations by means of X-Rays and/or physical chest examinations
by means of a stethoscope, to identify possible
TB infection;
isolation of infectious inmates and effective implementation of the
DOTS system over the prescribed period of time.”
133
Although
the respondent agreed that control of TB at Pollsmoor depended upon
effective screening of incoming inmates, the Supreme
Court of Appeal
held that self-reporting will necessarily be the “only”
means for TB detection. The Supreme Court
of Appeal went further to
hold that the applicant’s circumstances are an example of the
time that can elapse before the
risk of contagion is detected. It
may, however, be deduced from the statement of agreed facts that
that will be the case if no
effective screening is in place for
incoming inmates. In my view, the fact that Mr Lee was alive to the
risk of contracting TB
and sensitive to the need for early diagnosis
is, with respect, neither here nor there. The fact of the matter,
according to
the agreed facts, is that Mr Lee was not infected with
TB when he was first admitted at Pollsmoor.
Having
found that a causal link exists, for completeness, the next enquiry
regarding legal liability becomes relevant even though
legal
causation was not an issue before us. It involves the question
whether the defendant should be held liable. There must
be a
reasonable connection between the breach and the harm done.
134
This serves to limit liability because the consequences of an act or
omission might stretch into infinity. The respondent did
not suggest
that the harm was too remote. It bears mentioning that the Supreme
Court of Appeal correctly rejected the respondent’s

contentions for resisting liability in that “it would impose
an inordinate burden on the state”, and will “expose
it
to indeterminate liability” and that “there are means
other than a claim for damages that enable prisoners to
vindicate
their rights.”
135
Furthermore,
the democratic values of state accountability, responsiveness and
the rule of law are important aspects of the Constitution
which are
implicated here. To borrow the words of Madala J in
Nyathi v MEC
for Department of Health, Gauteng and Another
,
136
these values are “pillar-stones of our democracy” and
“must be observed scrupulously.”
137
If not, particularly in light of the injunctions of the Act and the
rights sought to be vindicated, “we have a recipe for
a
constitutional crisis of great magnitude.”
138
The Supreme Court of Appeal pertinently remarked:
“
Mr
Lee has certainly had a hard time of it. For four years he was
imprisoned while the state mustered its case against him and then
the
state failed. Meanwhile Mr Lee knew that he was at risk of
contracting [TB] in a prison
where
the health-care regime was breaking down.
When it occurred he had to manipulate and cajole at times to ensure
that he consistently received medication, conscious that he
would
suffer adverse consequences if he failed to do so. He had good reason
to feel aggrieved when he left prison but his troubles
were not yet
at an end.
When
he vented his grievance by suing the state he was met with a defence
on every leg of his claim. The state contested that Mr
Lee had been
infected in prison with no substantial grounds for doing so. It
contested the allegations of an inadequate health-care
regime
when
it must have known that it was defending the indefensible
. The
failing [health-care] regime had been repeatedly reported by its
medical doctors at high level, various reports on the situation
had
been circulated, newspapers had reported the position, a report of an
inspector from the office of the Inspecting Judge that
had been
prepared some four years before the matter came to trial disclosed
that [TB] management was virtually non-existent, and
so on. Yet the
state persisted . . . [not acknowledging any] responsibility towards
Mr Lee at any time.
Mr
Lee set out to vindicate an important statutory and constitutional
right and has done so substantially. It is true that his claim
has
failed but only on a narrow factual point. The state has important
responsibilities to its citizens. It might not always be
able to
fulfil them but then it ought properly to recognise where it has
failed.”
139
(Emphases added.)
The
responsible authorities’ function is to execute its duties in
accordance with the purposes of the Act which include
detaining all
inmate
s in safe
custody whilst ensuring their human dignity and providing adequate
health care services for every inmate to lead a healthy
life. The
rule of law requires that all those who exercise public power must
do so in accordance with the law and the Constitution.
140
This, including the requirements of accountability and
responsiveness, provides ‘additional’ reasons for
finding
in favour of the applicant and imposing delictual
liability.
141
This would enhance the responsible authorities’
accountability, efficiency and respect for the rule of law.
In
the circumstances, there is a probable chain of causation between
the negligent omissions by the responsible authorities and
Mr Lee’s
infection with TB.
I
would therefore uphold the applicant’s claim, as the High Court
did.
Development of
the common law
I
am indebted to Cameron J for the exposition of developments in the
Anglo-American common law, which illustrates the solutions
that
other jurisdictions have arrived at in relation to similar problems
of causation.
142
I draw comfort from the fact that the injustice of an inflexible
legal approach to factual causation is also recognised in foreign

jurisprudence. The common law may well have to develop from time to
time in this area, as in others. But in the circumstances
of this
case – particularly the nature of the omission – I do
not consider that our law needs to be developed in
accordance with
the casuistic approach endorsed by the cases referred to.
The
underlying cause for the development of exceptions in relation to
causation in these foreign cases appears to be the inflexibility
of
the application of the but-for test. Our law has always recognised
that the but-for test should not be applied inflexibly.
A court
ultimately has to make a finding as to whether causation was
established on a balance of probabilities on the facts of
each
specific case. Causation will not always follow whenever a wrongful
and negligent omission is shown.
The
concern that a flexible approach to factual causation and the
relaxation of the but-for test in appropriate cases may lead
to
limitless liability, especially in relation to omission cases, has
been addressed by the development of the test of reasonableness
in
the wrongfulness enquiry. That enquiry now concerns the
reasonableness of imposing liability on a defendant, and is not

restricted to the reasonableness of the defendant’s conduct,
which is an element of the separate negligence enquiry in our
law.
143
The wrongfulness requirement in our law thus provides a normative
mechanism, in addition to the negligence enquiry, to decide
whether
delictual liability should be extended or restricted. On my
understanding of the duty of care in other common law systems,
it
does not allow for that kind of extended judicial policy control of
imposing liability in tort, hence the perceived need to
do so
through exceptional relaxation of the but-for test of causation.
In
conclusion, I would grant leave and uphold the appeal.
Costs
The
applicant seeks costs including costs of three counsel. The
explanation proffered does not justify the award of costs for
three
counsel in the circumstances of this case. Costs of two counsel as
between party and party should suffice.
Order
In
the event, the following order is made:
Leave
to appeal is granted.
The
application to introduce new evidence under Rule 31 of the
Constitutional Court Rules is dismissed.
The
application to amend the particulars of claim is dismissed.
The
appeal is upheld.
The
order of the Supreme Court of Appeal is set aside.
The
respondent is declared liable to the applicant in delict.
The
case is remitted to the Western Cape High Court, Cape Town for a
determination on quantum.
The
respondent is ordered to pay the applicant’s party and party
costs in this Court, the Supreme Court of Appeal and
the High Court
including, where applicable, costs of two counsel.
CAMERON
J (Mogoeng CJ, Khampepe J and Skweyiya J concurring):
I
have had the benefit of reading the judgment of my colleague
Nkabinde J, and gratefully adopt her exposition of the facts
and
issues, though I differ from her reasoning and conclusion.
In
my view, on the facts before the High Court
144
and the Supreme Court of Appeal,
145
it cannot be said that it is more probable than not that ‘but
for’ the negligence of the prison authorities, Mr
Lee would
not have contracted tuberculosis (TB). The only conclusion possible
on the evidence is that the prison authorities’
negligent
conduct increased the overall risk that Mr Lee would contract TB.
But that should not lead to defeat for Mr Lee.
In my view, our law
should be developed to compensate a claimant negligently exposed to
risk of harm, who suffers harm. But
the delicate and difficult task
of undertaking that development should start in the High Court, and
should involve full assessment
of the intricacies of a system of
risk-based compensation. The case should therefore be remitted.
The
central question is whether Mr Lee established at the trial that
his infection with TB would probably have been averted
if his
jailers had taken reasonable measures to protect him from it. We
know from the agreed statement of facts, which we required
the
parties to submit instead of the trial record, that Mr Lee probably
contracted TB as a result of being locked up in Pollsmoor
at a time
when, despite standing orders, TB control measures at the prison
were virtually non-existent.
146
So he proved negligence and harm. But did he establish a link
between the two?
147
The
Supreme Court of Appeal upended the High Court’s finding in
Mr Lee’s favour on the principle of causation. It
found that
he had failed to show that the prison’s negligence caused his
injury. The Court’s reasoning is dense
and in places
elliptic. But it centres on the fact that Mr Lee did not know
precisely how he acquired TB. It found in his favour
that he
probably became infected while in Pollsmoor.
148
And it assumed in his favour, without making a definite finding,
that he was probably infected by a fellow prisoner who had
active
(and thus transmissible) TB while under the control of the prison
authorities.
149
But Mr Lee’s claim now confronted a two-fold problem. First,
what measures ought the prison authorities reasonably to
have taken
to prevent TB transmission? And second, had the prison authorities
taken these measures, would they more probably
than not have saved
Mr Lee from getting TB?
The
Supreme Court of Appeal noted that the law does not require the
prison authorities to “guarantee” that a prisoner
does
not get TB.
150
Pollsmoor did not have to do “everything that would have
avoided” TB being transmitted.
151
The prison authorities only had to take reasonable steps to protect
Mr Lee against it. What reasonable prison authorities should
have
done depended on medical best-practice, security issues, financial
resources, personnel, space, the prevalence and incidence
152
of the disease, “and other factors besides.”
153
On all this, Mr Lee had led only “scant evidence”,
which went “nowhere” towards showing what reasonable

prison authorities should have done.
154
But
in any event, the Court found, because Mr Lee could not say
precisely how he became infected, he was unable to prove that
what
the prison authorities did not do, but should have done, caused his
injury. Here the particular nature of TB infection
placed an
“insuperable hurdle” in Mr Lee’s path.
155
I
pause here to emphasise the unique nature of TB. It was accepted in
the High Court and the Supreme Court of Appeal that transmission

can occur by breathing in just one airborne TB mycobacterium.
156
A human being, at any one time, may be carrying any number of
bacterial cells,
157
from any possible number of sources. Indeed it was also common
cause that in some cases TB will take hold but remain dormant,

while in others it will “multiply and manifest in active
disease”.
158
What is more – and this is perhaps the biggest difficulty the
prison authorities face – a person in whom TB has
progressed
from “dormant” to “active” will not always
immediately show symptoms. The symptoms may manifest
only as the
disease progresses. To add to the complexity, it is possible to be
tested for TB, but be screened as “negative”,
even
though the bacterium is in fact present.
159
This means that identifying the presence of the bacterium and
indeed the number of cells carried by the host is extremely
difficult. Thus, we know exactly what agent causes TB (the
mycobacterium tuberculosis), but science cannot identify which one

of innumerable exposures was the probable source of infection in
this case.
Hence,
in a prison setting, particularly a large prison like Pollsmoor,
the disease cannot always be diagnosed immediately.
160
So prisoners with active TB are contagious to others before the
prison can reasonably be expected to diagnose, treat and if

necessary isolate them. The result was that even if Mr Lee had
shown what steps the prison authorities should reasonably have

taken, the course and ferocity of the disease meant that he would
always be at risk of contagion from undiagnosed fellow prisoners,

whatever prison management did. Since reasonable measures could not
eliminate this risk,
161
and since Mr Lee could not pinpoint who had infected him, it was
“just as likely as not” that he was infected by
a
prisoner whom the prison authorities could not reasonably have
known might pass the disease on to him. It was therefore not

possible to find that a negligent omission by the prison
authorities probably caused his infection.
162
To
this the Supreme Court of Appeal added an observation. Since Mr Lee
could not track a precise trail of negligent acts by
the prison
authorities that caused his infection,
163
to make his case he found himself cast back unavoidably on proving
a “systemic omission”
164
– namely that lack of adequate overall management measures
caused his injury. But without knowing exactly from whom he

contracted TB, this was impossible. To prove that a failure to
implement a reasonable system of TB controls had probably caused

him to contract TB, Mr Lee had to show that such a system “would
have altogether eliminated the risk of contagion”.
165
Because he could not do this, his claim had to fail.
The
finding that Mr Lee had to show that an adequate system of TB
prevention would have “altogether eliminated”
the risk
of contagion entreats further reflection. It proceeds from the fact
that it was impossible for Mr Lee to show that
his infection arose
from a source to which he was negligently exposed, as opposed to
one to which he was non-negligently exposed.
166
Given the indeterminacy of his source of infection, taking
reasonable measures could therefore
reduce his overall risk of
becoming infected
, in general terms – but he could never
show that
in the specific instance of his own infection
those measures would probably have saved him from TB. This is
because his own infection might equally well have resulted from
a
non-negligent exposure. It was this factor that made it necessary
for him to show that reasonable systemic measures would
have
excluded all risk of infection.
167
In
other words, to prove probable causative negligence, Mr Lee had to
show that a system of reasonable precaution would have
eliminated
all possibility of infection. Only this would enable the Court to
conclude that, since he did in fact become infected,
albeit from an
unknown source, he was probably infected by a negligent lapse in
those precautions. This was because, if the
system had been
adequately applied, there would have been no risk of transmission
at all.
On
the existing but-for test for causation, the Court’s logic is
not at fault. It entails that to establish liability
a claimant who
contracts TB would have to show that, had a reasonable system been
in place, the risk of contagion would have
been zero. Ordinarily,
where the source of infection is known, we would say a claimant
need show merely that the measures reduced
the risk to below 50%.
However, where the claimant cannot specify the source of his
infection, this cannot apply on the existing
but-for test for
causation. This reasoning warrants three comments.
First,
the formulation seems, paradoxically, to be at odds with the
Supreme Court of Appeal’s own earlier point, namely
that the
law does not demand a state institution or employer to “guarantee”
absence of risk.
168
Second,
because it requires elimination of systemic risk in order to make a
finding of probable causative negligence in cases
of undetermined
transmission, it rejects the possibility of risk-based recovery. If
a claimant cannot prove that his or her
injury was attributable to
the defendant’s negligence on the established
more-probably-than-not test, he or she must
fail. This entails that
the Supreme Court of Appeal’s reasoning axiomatically rejects
the notions of both apportioned
blame and recovery on the basis of
substantial increase in risk.
Third,
a corollary of the approach the Supreme Court of Appeal took seems
to be that, where a diseased claimant can prove negligence
but not
the source of infection, duties and standards of care in effect
become redundant. Where the source of infection is
unknown, the
plaintiff’s obligation is to show, in the hypothetical, a
total elimination of risk. This has an obviously
bad spin-off, in
that it may reduce incentives for state institutions and employers
to reduce risk in circumstances where they
cannot reasonably be
expected to eliminate it.
To
bring the matter starkly back to the case before us, because a
claimant in the position of Mr Lee may never be able to trace
the
source of his or her infection, the prison authorities would on the
but-for test for causation have no legal incentive,
at least in
principle, to reduce the risk of contagion. This is because they
need show only a small chance that a claimant
like Mr Lee may have
contracted TB anyhow, even if reasonable systemic measures had been
applied. Because the risk was not
altogether eliminated, the claim
will fail. And this will almost always be the case. Hence claimants
in Mr Lee’s position
will, on the existing test, almost never
be able to succeed.
These
problems all arise from the rigidity of the common law test for
causation, which requires claimants to prove more probably
than not
that the defendant’s negligence caused their injury. They are
not unique to our legal system. They have caused
other
jurisdictions to grapple with new approaches to the test for
causation in cases where the claimant is unable to pinpoint
the
source of his injury, or to indicate that his injury was probably
caused by a defendant who contributed to it, or where
the defendant
exposed the claimant to a risk of the injury in fact suffered.
The
jurisprudence of the United Kingdom in particular has responded
with innovation to the problem Mr Lee’s case presents.
The
claimants in
Fairchild
169
contracted mesothelioma because successive
employers negligently exposed them to asbestos dust. Inhaling
asbestos dust and fibres
plays some part in causing the disease,
but the precise way in which a mesothelial cell is transformed into
a mesothelioma
is unknown. All that was certain was that the
greater the exposure, the greater the overall risk
of
contracting mesothelioma. The claimants’ difficulty was that
the condition can be caused by being exposed to a single
asbestos
fibre – so it was impossible for them to prove precisely
which employer had negligently caused their injury.
It was also
impossible for them to prove that the negligence of any one
employer had more probably than not caused their exposure.
No
claimant could prove that ‘but for’ the negligence of
any specified employer, the injury would probably not
have
occurred. Thus, though any one of the employers
might
have caused the disease, the
claimants could not prove which of them
probably
did. The House of Lords, approving its previous
decision in
McGhee
,
170
held that the claimants were entitled to recover
from any of the negligent employers.
In
its causal sequence or aetiology, TB is analogous to a “single
fibre” disease.
171
As explained earlier,
172
TB may be caused by any one of innumerable exposures to the
mycobacterium tuberculosis, some of which occur because the

defendant was negligent and some not. Indeed, we cannot know how
many of the exposures are due to negligence and how many are

‘innocent’. While we know the agent in general, we do
not know, and cannot know, whether the particular agent stemmed

from a prisoner, from a guard, from a visitor, and so on –
any one of whom may be carrying any number of detectable or

undetectable bacteria. And while the Supreme Court of Appeal was
prepared to assume in Mr Lee’s favour that a fellow
prisoner
infected him, the problem remained that the prisoner who
(presumably) passed TB on to him may not have been detectably

contagious when he did so.
It
is these unique characteristics of TB that ran headlong into the
fact that our law of delict demands proof of probable cause
of
harm. And it is those characteristics that led the Supreme Court of
Appeal to non-suit Mr Lee. The question is whether the
result –
that Mr Lee is without remedy – is acceptable in our
constitutional state. The answer is No. But how do
we get to a just
outcome? It seems to me that our common law of recovery for
negligent injury should be developed to allow
for recovery in cases
where a plaintiff can prove that the defendant negligently exposed
him or her to the risk of harm, and
the harm eventuated. But
development is an intricate task. It seems most appropriate in the
limited cases of “single
fibre”
173
diseases where one can identify a single agent, but the disease, by
its very nature, defies the but-for test.
Subsequent
case law has further refined
Fairchild
.
174
The exception applies only where it is not possible
to
establish causation in the normal way.
175
In
Barker
,
176
which also concerned death from mesothelioma caused by exposure to
asbestos dust, it was held that a defendant is not liable
in full,
but only in proportion to the relative increase in risk for which
it is responsible.
177
And crucially, the exception to the rules of
causation is confined to “single agent” cases, as
opposed to those
where multiple differing causes
178
may have given rise to the condition.
American
courts have also grappled with the inadequacy of the but-for test
for causation.
179
Some have even considered reversing the onus of proof for certain
classes of injury.
180
What
seems clear is that in some classes of claim the traditional common
law but-for test is just not enough to deliver adequately
just
outcomes. This is particularly so in the case of Mr Lee. As the
main judgment rightly points out, prisoners are particularly

vulnerable and there are special reasons for imposing liability to
ensure accountability and responsiveness.
181
The Supreme Court of Appeal in its judgment gave feelingful
expression to the same point. It noted that Mr Lee was delivered

into the absolute power of the state, lost his autonomy and was
entitled to measures ensuring his physical welfare.
182
It said there was “every reason why the law should recognise
a claim for damages” to vindicate prisoners’
rights.
183
All
this indicates that the common law but-for test for causation is an
over-blunt and inadequate tool for securing constitutionally

tailored justice in cases where prisoners have proved exposure to
disease because of negligence on the part of the prison
authorities, but cannot pinpoint the source of their injury. The
change in the United Kingdom jurisprudence has been justified

frankly, on grounds of simple justice, since it would be wrong for
employers to avoid liability for wrongdoing because of causal

indeterminacy. The English courts did this without constitutional
imperative. With us, that imperative is there. In Mr Lee’s

case, his vulnerability as a prisoner, which meant he was unable to
put himself out of harm’s way, together with the
lack of
proper care on the part of the prison authorities, makes a
similarly powerful case for developing our common law.
This
is not to say that normative considerations bearing on what wrongs
should be compensable in our constitutional system play
into
determining factual cause and effect – but, rather, these
considerations make the case for relaxing the over-rigid
strictures
of but-for factual inferences. Should the common law be developed,
the causation inquiry remains a question of fact,
though now the
question is a wider one, that is easier to answer in cases like Mr
Lee’s: would reasonable measures have
reduced the overall
risk
of infection? And, then, should the extent of risk to
which the defendant’s negligent conduct exposed the claimant
lead
to recovery for the injury that was suffered?
What
the parties’ agreed statement of facts tells us about the
epidemiology of TB underscores how inapt the blunt application
of
the common law test is. TB is a “formidable infectious
disease” that constitutes a serious public health problem,

and South Africa “has one of the highest incidence rates of
tuberculosis in the world” – which means that
the rate
of transmission in this country is one of the highest anywhere. And
prisons are a “favourable environment for
contracting
tuberculosis”. The authorities at Pollsmoor were “pertinently
aware of the risk to prisoners of contracting
tuberculosis” –
yet they failed to observe their own standing orders.
The
test for causation the Supreme Court of Appeal applied, while
adequate for cases where a claimant can identify the source
of his
injury, may not be sufficient where he or she cannot know the
source. On the existing test, the Court correctly found
that
because Mr Lee cannot specify the source of his infection, he
cannot show on balance of probabilities that the prison
authorities
caused his injury. But this approach rejects all prospect of
recovery even where the court finds that the defendant’s

negligence increased the risk of injury. This seems unjust. And it
may be constitutionally unsustainable. The law has never
required
perfection in imposing standards of care. It has only ever required
reasonable conduct. Reasonableness permits a defendant
to fall
short of perfection. This means that there are legally countenanced
levels of risk of harm – as well as levels
of risk that the
law should not countenance.
My
colleague holds that probable factual causation is established
where a plaintiff can show that contagion is less likely to
occur
in a non-negligent system than in an existing negligent one. She
finds that if a non-negligent system reduced the risk
of general
contagion, it can properly be inferred that specific individual
contagion within a non-negligent system would be
less likely than
in a negligent system. “It would be enough”, my
colleague finds, “to satisfy probable factual
causation where
the evidence establishes that the plaintiff found himself in the
kind of situation where the risk of contagion
would have been
reduced by proper systemic measures.”
184
My disagreement with this finding is three-fold.
First,
it is not possible to infer probable factual causation from an
increase in exposure to risk by itself. By corollary,
where the
actual origin of the injury cannot be traced (as with Mr Lee’s
TB), it is impossible to say that infection
was probably caused by
a
negligent
exposure to risk, as opposed to an exposure that
no amount of care on the prison authorities’ part could have
avoided.
Second,
the very nature of negligent conduct is that it increases risk and
thus makes harm more likely to occur. To infer probable
factual
causation merely from increased likelihood of harm is to suggest
that probable factual causation follows from every
finding of
negligence. But increased likelihood, or an overall increase in
risk, still does not tell us whether the negligent
conduct was more
probably than not the cause of the specific harm.
Third,
the approach entails that factual causation may be inferred from
any increase in risk. This is because my colleague’s
approach
leaves no room for assessment of the amount of risk exposure that
occurred, how much of it was attributable to the
negligence of the
defendant, and what level of risk exposure should lead to recovery
of compensation. There is thus no room
for risk appreciation or
possible blame apportionment. The evidence the amici and the prison
authorities tendered on appeal
illustrates this. Though their
respective experts conflicted on certain points, they agreed that,
even if minimum South African
national standards of incarceration
had been implemented, there would still have been a more than 50%
risk of transmission
of TB in Pollsmoor.
185
The
intricacies of this area of law, in my view, require accommodation
of these complexities. Thus, it would seem that on my
colleague’s
approach, if, before proper measures were in place, a prisoner had
a 90% chance of contracting TB, but proper
measures reduced this to
85%, the fact that the prisoner was negligently exposed to an
increase in risk would by itself render
the defendant liable. In
other words, even if the harm were likely to result despite
reasonable measures being taken, the defendant
would still be
liable because the risk was increased, even if only nominally.
The
approach of the Supreme Court of Appeal also shut out consideration
of any of these avenues of development. In my view,
it erred in
doing so. Denying recompense, and insulating the prison authorities
from responsibility, merely because Mr Lee
was unable to pinpoint
the source of his infection, may have trenched upon his
constitutional right to security of the person.
186
It may also have impinged on his right to conditions of detention
that are consistent with human dignity.
187
The
Supreme Court of Appeal, having concluded that the High Court
judgment in Mr Lee’s favour was unsustainable on the
basis of
the traditional but-for test for causation, was therefore obliged
to consider developing the common law. In
Carmichele
,
188
this Court held that “where the common law deviates from the
spirit, purport and objects of the Bill of Rights the courts
have
an obligation to develop it by removing that deviation.”
189
The Court also required judges to “remain vigilant” and
“not hesitate to ensure that the common law is developed
to
reflect the spirit, purport and objects of the Bill of Rights.”
190
This
case is very different from
Everfresh
,
191
in which a private law litigant asked this Court to develop the
common law of contract “where a clause grants both parties

the discretion to negotiate”
192
so as to require those parties to do so reasonably and in good
faith, but failed to raise the constitutional argument before

either the High Court or the Supreme Court of Appeal. The majority
of this Court
193
decided that it was not in the interests of justice to entertain
the appeal because there were no special circumstances requiring

this Court to undertake the development the litigant sought as a
court of first and last instance. On the contrary, it would
be
unfair to the opposing litigant to have to meet a new case, the
termination of which would result in no dire consequences
for the
claimant.
194
Mr
Lee’s position is radically different. He seeks development
of the common law affecting a vulnerable group to whom
our system
of constitutional protections owes particular solicitude. In this
his plight echoes that of the claimant in
Carmichele
, whose
protection and right to a remedy raised urgent questions of gender
justice.
195
And the position of the defendant from whom Mr Lee seeks recompense
is also different. The country’s interest in the
development
of a sound system of incarceration, in which risk of exposure to
pathogens is minimised as much as is reasonably
possible, suggests
there may be a need to develop the common law of causation.
What
the results of that development might be it is not possible or
desirable for this Court to say. The defendant strongly
argued that
Mr Lee had failed to establish his case even if the touchstone of
liability were risk-aversion, and not probable
causation. This was
because Mr Lee was a smoker (which placed him at greater risk of
contracting TB),
196
and because he was better-off than most prisoners. For most of his
incarceration he enjoyed the special privilege of single

cell-accommodation (which he shared with two other prisoners). This
meant that he was less exposed to overcrowding, smoke and
other
prisoners’ sputum and coughing.
In
my view, it is not possible for this Court, particularly given the
truncated record before it, to consider properly and justly
all the
avenues of possible development, and their implications for the
parties’ respective cases. In
Carmichele
, this Court
noted the value of “close and sensitive interaction between,
on the one hand, the High Courts and the Supreme
Court of Appeal
which have particular expertise and experience in this area of the
law and, on the other hand, this Court.”
197
It also noted that litigants may be disadvantaged because they have
not had “the opportunity of reconsidering or refining
their
respective arguments” in the light of previous Supreme Court
of Appeal jurisprudence.
198
These considerations apply equally here.
In
the circumstances, the just order would be remit the matter to the
trial court, for it to consider, in the light of the findings
of
the Supreme Court of Appeal, and this judgment, the manner in which
the common law ought to be developed. It may have been
appropriate,
depending on the trial court’s conclusion on this, to permit
the parties to lead further evidence.
For
the Applicant: Advocate M Donen SC, Advocate M Bridgman and Advocate
L Dzai instructed by Jonathan Cohen & Associates.
For
the Respondent: Advocate I Jamie SC, Advocate Karrisha Pillay, and
Advocate Dheshni Pillay instructed by the State Attorney.
For
the Amici Advocate A Hassim instructed by SECTION27.
1
Minister
of Correctional Services v Lee
2012 (3) SA 617
(SCA)
(Supreme
Court of Appeal Judgment).
2
Lee
v Minister of Correctional Services
2011 (6) SA 564
(WCC) (High
Court Judgment).
3
The
first-mentioned violation relates to conduct (an act) limiting the
applicant’s liberty by being detained and the second
involves
omissions.
4
The
applicant was unable to identify all the people responsible for his
treatment while incarcerated at the maximum security prison
at
Pollsmoor and thus refers to them as the responsible authorities.
That includes the Minister for Correctional Services and
officers of
the Department of Correctional Services responsible for the control
and management of the prison during the period
of his incarceration.
5
111
of 1998 (Act).
6
The
statement of agreed factual findings was lodged following this
Court’s directions dated 30 May 2012, setting the matter
down
for hearing on Tuesday, 28 August 2012 and which stated, in relevant
part:
“
2. The
parties are directed to submit by Friday, 22 June 2012 an agreed
statement based on the factual findings of the High Court
and the
Supreme Court of Appeal, setting out the facts that are necessary
for this Court to determine the issues before it.
3. Should the
parties be unable to agree on a statement of facts as envisaged,
they are required to lodge an affidavit setting
out—
(a) precisely why
they could not agree;
(b) the draft
statement proffered by each party;
(c) the facts that
are common to each statement;
(d) the factual
findings about which they could not agree;
(e)
the precise portions of the record that relate to the disputed
findings.”
7
Pollsmoor
is a prison complex consisting of five different prisons: the
admissions centre which is also known as the maximum security

prison, the women’s prison, the juvenile prison and the medium
security prisons B and C for sentenced prisoners.
8
On
charges of, among others, counterfeiting, fraud and money
laundering.
9
High
Court Judgment above n 2 at para 50.
10
Id
at para 52.
11
Id.
12
Id.
13
Supreme
Court of Appeal Judgment above n 1 at para 18.
14
Id
at para 11.
15
High
Court Judgment above n 2 at para 223.
16
Id
at
para 214.
17
The
SCOs have been compiled to give effect to the Act.
18
Clause
4.1(a) provides that all persons—
“
admitted
to prison, should be seen on admission by a registered nurse for,
inter alia, medical problems, whether acute or chronic.”
19
Clause
4.4(a) provides:
“
[A]ll
admissions must be screened by a registered nurse on admission using
the screening form.”
20
Clause
6.1 provides:
“
[F]ollowing
screening at the reception, all admissions must be taken to the
prison health facility by the unit manager or reception
manager
within 24 hours, for a medical examination by the registered nurse
or medical officer/practitioner as prescribed
.
”
21
Clause
6.2 provides:
“
[a]t
prisons where there are primary health care clinics at the housing
units, the medical examination may be performed at such
clinics.”
22
Clauses
14 and 15 of Chapter 3, in relevant part, make provision for
communicable and contagious diseases:
“
14.6.1
Whenever there is a suspicion that a prisoner . . . could be
suffering from a communicable, or contagious disease. . .
[t]he case
must immediately be brought to the attention of the Supervisor:
Nursing and the attending medical officer/practitioner.
. . .
14.6.3 If the
registered nurse or attending medical officer/ practitioner deems it
necessary to isolate/segregate the prisoner
. . . suspected to be
suffering from a communicable, or contagious disease, the
recommendations or prescriptions must always
be adhered to.
. . .
15.1 All prisoners
with communicable conditions must be isolated in strict accordance
with the medical officer’s/practitioner’s
and registered
nurse’s orders issued in each case.
. . .
15.3 Each prison
must have written orders on infection control which must be
monitored and reviewed annually.”
23
High
Court Judgment above n 2 at para 42.
24
Id
at para 232
.
25
The
High Court made the following order:
“
1.
That the [respondent] is declared to be liable to the [applicant] in
delict pursuant to the [applicant] having become ill with
TB whilst
he was incarcerated in the Maximum Security Prison at Pollsmoor.
2. That the
Registrar is requested to set the matter down for hearing, in
consultation with the Judge President, in order for
the parties to
lead evidence pertaining to the quantum of the [applicant’s]
damages in respect of his illness with TB as
aforesaid and the
sequelae thereof.
3. That
[respondent] is to pay the [applicant’s] costs of suit as
between party and party.”
26
High
Court Judgment above n 2 at
para 2.
27
Id
at para 6.
28
Id.
29
Id.
30
Section
10 provides that “[e]veryone has inherent dignity and the
right to have their dignity respected and protected.”
31
Section
11 provides that “[e]veryone has the right to life.”
32
Section
12(1) provides that:
“
Everyone
has the right to freedom and security of the person, which includes
the right—
(a) not to be
deprived of freedom arbitrarily or without just cause;
(b) not to be
detained without trial;
(c) to be free from
all forms of violence from either public or private sources;
(d) not to be
tortured in any way; and
(e) not to be
treated or punished in a cruel, inhuman or degrading way.”
33
Section
35(2)(e) of the Constitution provides:
“
Everyone
who is detained including every sentenced prisoner, has the right to
conditions of detention that are consistent with
human dignity,
including at least exercise and the provision, at state expense, of
adequate accommodation, nutrition, reading
material and medical
treatment”.
34
Section
2 provides in relevant part:
“
The
purpose of the correctional system is to contribute to maintaining
and protecting a just, peaceful and safe society by—
(a) enforcing
sentences of the courts in the manner prescribed by this Act;
(b)
detaining all
inmate
s
in safe custody whilst ensuring their human dignity”.
Section 12
provides:
“
(1)
The Department must provide, within its available resources,
adequate health care services, based on the principles of primary

health care, in order to allow every inmate to lead a healthy life.
(2)(a) Every inmate
has the right to adequate medical treatment but no inmate is
entitled to cosmetic medical treatment at state
expense.
(b) Medical
treatment must be provided by a correctional medical practitioner,
medical practitioners or by a specialist or health
care institution
or person or institution identified by such correctional medical
practitioner except where the medical treatment
is provided by a
medical practitioner in terms of subsection (3).
(3) Every inmate
may be visited and examined by a medical practitioner of his or her
choice and, subject to the permission of
the Head of the
Correctional Centre, may be treated by such practitioner, in which
event the inmate is personally liable for
the costs of any such
consultation, examination, service or treatment.
(4)(a) Every inmate
should be encouraged to undergo medical treatment necessary for the
maintenance or recovery of his or her
health.
(b) No inmate may
be compelled to undergo medical intervention or treatment without
informed consent unless failure to submit
to such medical
intervention or treatment will pose a threat to the health of other
persons.
(c) Except as
provided in paragraph (d), no surgery may be performed on an inmate
without his or her informed consent, or, in
the case of a minor,
without the written consent of his or her legal guardian.
(d) Consent to
surgery is not required if, in the opinion of the medical
practitioner who is treating the inmate, the intervention
is in the
interests of the inmate’s health and the inmate is unable to
give such consent, or, in the case of a minor, if
it is not possible
or practical to delay it in order to obtain the consent of his or
her legal guardian.”
35
Supreme
Court of Appeal Judgment above n 1 at para 15.
36
Directly
Observed Therapy Short-Course. Some authors describe DOTS as a good
therapy for pan-susceptible TB but that its success
depends on the
efficacy of the antibiotics used. See in this regard Farmer
Pathologies of power – health, human rights, and the new
war on the poor,
(University of California Press, California
2005) at 124.
37
High
Court Judgment above n 2 at paras 249-50.
38
Supreme
Court of Appeal Judgment above n 1 at para 35.
39
Id
at para 36.
40
Id
at para 42.
41
1966
(2) SA 428
(A) at 430E-F.
42
Supreme
Court of Appeal Judgment above n 1 at para 44.
43
Id
at para 38.
44
Id
at para 46.
45
Id
at para 46. See also
Minister of Police v
Skosana
1977 (1) SA 31
(A) at 35C-D.
46
1990
(1) SA 680
(A) (
International Shipping
). Supreme Court of
Appeal Judgment above n 1 at paras 47
-
50.
47
Supreme
Court of Appeal Judgment above n 1 at para 55.
48
Id
at para 57.
49
See
[15] above.
50
Supreme
Court of Appeal Judgment above n 1 at para 59:
“
All
that is true but in each case it begs the question what would have
been reasonable. So, for example, while proper screening
procedures
for incoming prisoners are no doubt required, that begs the question
what procedures might reasonably be expected
in a large and
congested prison. And while regular and effective screening of
inmates will clearly reduce the risk of contagion,
what is
reasonably regular and effective when applied to some 4 000
prisoners? It might be tempting to answer those questions
by saying
that what ought to have been done was everything that would have
avoided tuberculosis being transmitted but that would
be fallacious.
I have already indicated that the prison authorities are not
required to guarantee that transmission will not
occur: only to take
reasonable steps to prevent it.”
51
Id.
52
Id
at para 60.
53
Id
at para 61.
54
Id.
55
Id
at para 63.
56
Id
at para 64.
57
Id
at paras 53-4.
58
2002
(6) SA 431
(SCA). The case concerns a negligent omission on the part
of policemen causing physical harm to the claimant. One B, fond of

alcohol and guns, shot the respondent in an accident that resulted
in B shooting and killing both his wife and daughter and shooting

the respondent in the ankle and shoulder. The police had prior
knowledge that B had a drinking problem and had threatened to
harm
not only himself and his wife and children but also the police
themselves with the guns that were licensed to him. Section
11 of
the Arms and Ammunition Act 75 of 1969 provides that a person like B
may be deprived of his gun and licence for a period
not less than
two years following an enquiry. The police were in the circumstances
required to reduce the information in their
possession to writing,
under oath, and forward that information to the relevant person in
charge of the enquiries. They failed
to do so and this was the basis
for the claim of the negligent omission causing the harm to the
claimant.
59
See
also sections 2 and 12 of the Act, quoted in full above n 34.
60
Section
7(2) of the Constitution provides:
“
The
state must respect, protect, promote and fulfil the rights in the
Bill of Rights.”
61
Section
1(d) of the Constitution provides:
“
Universal
adult suffrage, a national common voters roll, regular elections and
a multi-party system of democratic government,
to ensure
accountability, responsiveness and openness.”
62
In
S
v Shaik and Others
[2007] ZACC 19
;
2008 (2) SA 208
(CC);
2007 (12) BCLR 1360
(CC) at
paras 18-9, this Court, relying on
Prince
v President, Cape Law Society, and Others
[2000] ZACC 28
;
2001 (2) SA 388
(CC);
2001 (2) BCLR 133
(CC),
interpreted the provisions of Rule 31 and held that evidence sought
to be adduced under Rule 31 must be incontrovertible
or easily
verifiable to be admissible. See in this regard
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metrorail
and
Others
[2004]
ZACC 20
;
2005 (2) SA 359
(CC);
2005 (4) BCLR 301
(CC) (
Rail
Commuters
)
at para 37. See also
In
re Certain Amicus Curiae
Applications:
Minister of Health and Others v Treatment Action Campaign and Others
[2002] ZACC 13
;
2002
(5) SA 713
(CC);
2002
(10) BCLR 1023
(CC) at para 8.
63
This
Court, in
Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers
(Pty) Ltd
[2011] ZACC 30
;
2012 (1) SA 256
(CC);
2012 (3) BCLR
219
(CC) (
Everfresh
) at para 63, held that—
“
while
there may be cases where the interests of justice require that a
constitutional complaint be raised for the first time before
this
court, these would be rare and exceptional. In
Lane
and Fey NNO
this court set out the proper approach in the following terms:
‘
Where
the development of the common law is the issue, the views and
approach of the ordinary courts, and particularly the SCA,
are of
particular significance and value. Save in special circumstances,
this court should not consider this kind of matter as
a court of
first instance. No relevant factors have been raised by the
applicants that would constitute such special circumstances.’”

(Footnotes omitted.)
See
also
Phillips and Others v National Director of Public
Prosecutions
[2005] ZACC 15
;
2006 (1) SA 505
(CC);
2006 (2) BCLR
274
(CC) at para 44.
64
See
Betlane v Shelley Court CC
[2010]
ZACC 23
;
2011 (1) SA 388
(CC);
2011 (3) BCLR 264
(CC)
at
para 22;
Satchwell v President of
the Republic of South Africa and Another
[2003]
ZACC 2
;
2003 (4) SA 266
(CC);
2004 (1) BCLR 1
(CC) at para 6; and
Van der Spuy v General Council of the
Bar of South Africa (Minister of Justice and Constitutional
Development, Advocates for Transformation
and Law Society of South
Africa Intervening)
[2002] ZACC 17
;
2002 (5) SA 392
(CC);
2002 (10) BCLR 1092
(CC) at para 19.
65
Supreme
Court of Appeal Judgment above n 1 at para 35.
66
Id
at para 44.
67
Skosana
above n 45 at 34D-E.
68
Id
at 34E-H.
69
Van
Duivenboden
above n 58 at para 12.
70
Rail
Commuters
above n 62 at para 52.
71
These
theories include
the foreseeability theory, adequacy theory
and the direct consequences theory. See Neethling et al
The
Law of Delict
5 ed (LexisNexis Butterworths, Durban 2006)
(Neethling) at 160
.
72
Some
authors refer to it rather as
conditio
cum qua non
. See Van Oosten
De
Jure
(University of Pretoria, Pretoria
1982)
at 257.
73
Neethling
above n 71 at 160.
74
International
Shipping
above n 46 at 700F-H.
75
Neethling
above n 71 at 162.
76
See
Van der Walt and Midgley
Principles of Delict
3 ed
(LexisNexis Butterworths, Durban 2005) at 199-201.
77
The
facts in
S v Van As en ‘n Ander
1967 (4) SA 594
(AD)
(
Van As
) and other cases including
Skosana
above n 45
and
Siman & Co (Pty) Ltd v Barclays National Bank Ltd
1984 (2) SA 888
(AD) (
Siman)
are illustrative. In
Van As
,
the policemen neglected to search for children who had fled into the
night and later died of exposure. The question was whether
the
children’s death was caused by the omission to search for
them. The Court tested the causal connection between the
omission
and the death by asking whether a reasonable search would have
prevented the children’s death. It inserted a positive
act in
the place of the omission. Some authors (Neethling above n 71) are
of the view, and I agree, that the insertion of the
reasonable
conduct of the defendant into the set of facts is said to have the
potential to cause confusion between factual causation
and
negligence. What must be determined first is whether the wrongdoer
could have done anything to prevent the relevant consequence
(and
only then, whether the reasonable person in the position of the
defendant would have prevented the consequence).
78
Siman
id at 914F-915H.
79
Id.
80
Supreme
Court of Appeal Judgment above n 1 at paras 52-4.
81
Id
at paras 57, 60 and 64.
82
Id
at para 47.
83
Id
at paras 48-63.
84
Id
at para 64.
85
Kakamas
Bestuursraad v Louw
1960 (2) SA 202
(A) (
Kakamas
) at
220B-C.
86
Id.
See also
Smith, Hogg and Company, Limited v Black Sea and Baltic
General Insurance Company, Limited
1940 AC 997
at 1003-4.
87
Siman
above n 77.
88
Id
at 917H-918A.
89
Van
Duivenboden
above n 58.
90
Minister
of Finance and Others v Gore NO
2007 (1) SA 111
(SCA).
91
[2005]
4 All ER 812
;
[2005] UKHL 2
at para 202.
92
Gore
above n 90 at para 33.
93
Siman
above 77.
94
Siman
above n 77 at 914F-915G.
95
Id.
See also
Kakamas
above n 85 at 220B-C.
96
Id
at 907E.
97
Id
at 916A-917H.
98
Kakamas
above n 85 and
Van As
above n 77.
99
Smith
v Auckland Hospital Board
[1965] NZLR 191.
100
Van
der Walt and Midgley “Delict” 8(1)
The Law of South
Africa
2005 (
LAWSA
).
101
Id
at para 130 in fn 15.
102
Corbett
JA acknowledged this again in
International Shipping
above n
46 at 700G: “This enquiry
may
involve the mental
elimination of the wrongful conduct and the substitution of a
hypothetical course of lawful conduct and the
posing of the question
as to whether upon such an hypothesis plaintiff’s loss would
have ensued or not.” (My emphasis.)
103
Minister
of Safety and Security and Another v Carmichele
2004 (3) SA 305
(SCA) at para 59.
104
Siman
above n 77.
105
International
Shipping
above n 46.
106
Administrateur,
Natal v Trust Bank van Afrika Bpk
1979 (3) SA 824
(A) and
Minister van Polisie v Ewels
1975 (3) SA 590
(A).
107
International
Shipping
above n 46 at 701F-G.
108
Ewels
above n 106.
109
Id
at 597A-C.
110
F
v Minister of Safety and Security
and Others
[2011]
ZACC 37
;
2012 (1) SA 536
(CC);
2012 (3) BCLR 244
(CC)
at para
119 and the cases cited in fn 46.
111
Id
at para 119 and the cases cited in fn 47.
112
Siman
above n 77 at 915F-G.
113
Minister
of Justice v Hofmeyr
[1993] ZASCA 40
;
1993 (3) SA 131
(AD) at 141C-142C and
146C-D.
114
Quoted
in full above n 33.
115
See
also section 2 of the Act, the relevant part of which is quoted
above n 34.
116
International
Shipping
above n 46 at 700G.
117
Id
at 702A.
118
Supreme
Court of Appeal Judgment above n 1 at paras 63-4.
119
Section
35(2)(e), quoted in full above n 33.
120
Supreme
Court of Appeal Judgment above n 1 at para 64.
121
Cameron
J points out, at [84] below, that there can never be scientific
certainty in identifying the source of infection in the
case of TB.
That may be so. However, that standard of absolute certainty is too
exacting and is not the one that our law requires.
122
The
relevant clauses of the SCOs are set out in full above n 18 to n 22.
123
Compare
Olitzki Property Holdings v State Tender Board and Another
2001 (3) SA 1247
(SCA) at para 12.
124
Although
the respondent sought to argue that the SCOs were not applicable
under the previous legislation, the repealed Correctional
Services
Act 8 of 1959 (1959 Act), it is common cause that the SCOs in terms
of the Act are identical to those that applied in
terms of the 1959
Act. See in this regard the High Court Judgment above n 2 at para
68.
125
Van
Duivenboden
above n 58.
126
Section
7(2) provides:
“
That the
state must respect, protect, promote and fulfil the rights in the
Bill of Rights.”
127
Van
Duivenboden
above n 58 at para
20.
128
Supreme
Court of Appeal Judgment above n 1 at para 36.
129
Van
Duivenboden
above n 58 at para 21.
130
Supreme
Court of Appeal Judgment above n 1 at para 42.
131
Id
at
para 36.
132
Id
at para 42.
133
Id
at para 58.
134
Neethling
above n 71 at 160.
135
Supreme
Court of Appeal Judgment above n 1 at para 37.
136
[2008]
ZACC 8
;
2008 (5) SA 94
(CC);
2008 (9) BCLR 865
(CC).
137
Id
at para 80.
138
Id.
139
Supreme
Court of Appeal Judgment above n 1 at paras 66-8.
140
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007]
ZACC 22
;
2008 (2) SA 24
(CC);
[2007] 12 BLLR 1097
(CC) at para
232.
See also
Van Duivenboden
above n 58 at para 21.
141
F
v Minister of Safety and Security and Others
above
n 110 at para 123 in fn 53.
142
At
[94]–[102] below.
143
International
Shipping
above n 46 at 701F-G.
144
Lee
v Minister of Correctional Services
2011 (6) SA 564
(WCC) (High
Court judgment).
145
Minister
of Correctional Services v Lee
2012 (3) SA 617
(SCA) (Supreme
Court of Appeal judgment).
146
The
parties agreed that, to the extent that any system existed at all
for managing TB, “its application in practice was
at best
sporadic and in at least some respects effectively non-existent”
(echoing the Supreme Court of Appeal judgment
id at paras 44 and 67
that TB management was virtually “non-existent”), and
that the spread of TB was “facilitated
by the prevailing
conditions in the prison”. The parties agreed further that it
“is more probable than not that [Mr
Lee] contracted TB as a
result of his incarceration” in Pollsmoor (echoing the Supreme
Court of Appeal judgment id at paras
52-3).
147
As
the Supreme Court of Appeal judgment observed id at para 55,
“[p]roof alone that reasonable precautions were not taken
to
avoid foreseeable harm, and that the harm occurred, does not
establish that the former caused the latter.”
148
Id
at paras 52-3.
149
Id
at para 54.
150
Id
at para 56 (“[l]ife has many hazards that will not be avoided
even when reasonable steps are taken to do so”) and
at para
59.
151
Id
at para 59.
152
The
Supreme Court of Appeal judgment id at para 60 mentioned incidence,
which is the rate at which a disease is transmitted in
a vulnerable
population. To this should be added prevalence, which is a current
snapshot of how many in that population have
the disease.
153
Id
at para 60.
154
Id.
155
Id
at para 61.
156
According
to the parties’ agreed statement of facts: “[t]ransmission
in human beings occurs by inhalation of the organism”.
157
According
to the parties’ agreed statement of facts: “[s]ome
persons who are ill with tuberculosis shed more bacteria
than others
and are known as ‘super shedders’.” (Footnote
omitted.)
158
Supreme
Court of Appeal judgment above n 145 at para 7.
159
According
to the parties’ agreed statement of facts: “[a] negative
test confirms the absence of organisms from the
sample, but the
sample may not be representative of the host, which means that a
negative test is not confirmation of the absence
of the disease.”
160
The
parties’ agreed statement of facts stipulated that “whatever
management strategies are put in place there will
always be a risk
of infection if only because diagnosis is a precursor to
intervention, and the disease might often be diagnosed
well after
the prisoner has become contagious.”
(Footnote
omitted.)
161
Supreme
Court of Appeal judgment above n 145 at para 61 (“I do not
think the prison authorities can reasonably be expected
to examine
some 4000 prisoners with such regularity and thoroughness that
tuberculosis will always be detected before the prisoner
becomes
contagious”). The parties’ agreed statement of facts
echoes the High Court and the Supreme Court of Appeal
judgments’
findings on this score and others.
162
Supreme
Court of Appeal judgment above n 145 at para 63.
163
The
parties’ agreed statement of facts noted that had Mr Lee known
the source of his infection, “he might have established
a
causal link between the infection and specific negligent conduct on
the part of the authorities.”
164
Supreme
Court of Appeal judgment above n 145 at para 64.
165
Id.
166
Id
at paras 62-3.
167
Id
at para 64.
168
Id
at paras 56 and 59.
169
Fairchild
v Glenhaven Funeral Services Ltd and Others;
Fox v
Spousal (Midlands) Ltd; Matthews v Associated Portland Cement
Manufacturers (1978) Ltd and Others
[2002] UKHL 22
,
[2003] 1 AC
32.
170
McGhee
v National Coal Board
[1973] 1 WLR 1
,
[1972] 3 All ER
1008
(HL). In
McGhee
, the employer failed to enable employees
to wash off brick dust before leaving work. The claimant contracted
dermatitis, but
could not prove that the employer’s omission
was the sole or main cause of his injury. The House of Lords held
that the
employer’s breach of duty had “materially
increased the risk” of dermatitis, and that the claim should
therefore
succeed.
171
See
Fairchild
above
n 169 at para 7D-E, where, in speaking of the development of a
mesothelioma caused by asbestos exposure, it was said: “the

condition may be caused by a single fibre, or a few fibres, or many
fibres: medical opinion holds none of these possibilities
to be more
probable than any other, and the condition once caused is not
aggravated by further exposure.”
172
Error:
Reference source not found above.
173
Fairchild
above n 169.
174
See
Peel “The Law of Tort: Recent Developments and Current Issues”
(unpublished Judicial Studies Board guidance, May
2012).
175
Sanderson
v Hull
[2008] EWCA Civ 1211
(CA).
176
Barker
v Corus UK Ltd; Murray v British Shipbuilders (Hydrodynamics) Ltd
and Others; Patterson v Smiths Dock Ltd and Another
[2006] UKHL
20
,
[2006] 2 WLR 1027.
177
It
is important to note that the immediate effect of apportionment
under
Barker
id was reversed in England by section 3 of the
Compensation Act 2006 but only in relation to mesothelioma cases.
See Peel above
n 174.
178
Compare
Wilsher v Essex Area Health Authority
[1988] AC 1074
(HL).
179
See
Herskovits v Group Health Cooperative of Puget Sound
99
Wash.2d 609
,
664 P.2d 474
(1983) at para 477. Here, the court
affirmed the but-for test in general, but held that a patient, with
a less than 50%
chance of survival on admission, had a cause of
action against the hospital and its employees if they were negligent
in diagnosing
a lung cancer that reduced his chances of survival by
14%, because otherwise there “would be a blanket release from
liability
for doctors and hospitals any time there was less than a
50 percent chance of survival, regardless of how flagrant the
negligence.”
180
See
Summers v Tice et al
33 Cal.2d 80
,
199 P.2d 1
(1948). Here, a
claimant was injured by a bird shot discharged from a shotgun, but
could not show which of two defendants had
fired the shot that
actually caused the injury. It was held that the onus shifted to the
two defendants. In
Sindell v Abbott Laboratories et al; Rogers v
Rexall Drug Company et al
26 Cal.3d 588
,
607 P.2d 924
, 163
Cal.Rptr. 132 (1980), it was said that the burden reverses only
where there is a substantial likelihood that the defendant
is the
guilty tortfeasor. However, the California Supreme Court rejected
reversal entirely in
Rutherford v Owens-Illinois Inc
941 P.2d
1203
(Cal.1997) holding that the burden of proof for causation
remains with the plaintiff even in cases of cancer caused by
asbestos.
181
See
and above. See
Olitzki Property Holdings v State Tender Board and
Another
2001 (3) SA 1247
(SCA) and
Minister of Safety and
Security v Van Duivenboden
2002 (6) SA 431
(SCA).
182
Supreme
Court of Appeal judgment above n 145 at para 36.
183
Id
at para 42. Van Zyl Smit and Snacken
Principles of European
Prison Law and Policy: Penology and human rights
(Oxford
University Press, Oxford 2011) at 147 rightly consider health care
“one of the most important determinants of the
general
conditions of imprisonment.”
184
above.
185
The
amici tendered a study of the trial court record by Professor Robin
Wood and others, published as Johnstone-Robertson et al

“Tuberculosis in a South African prison – a transmission
modelling analysis” (2011) 101
SAMJ
809. The main
judgment holds that this evidence does not meet the threshold
requirements of being incontrovertible or common
cause as envisaged
in Rule 31. However, it usefully illustrates the difficulties that
arise when risk exposure is telescoped
into proof of factual
causation. Professor Wood and his co-authors found that conditions
prevailing in Pollsmoor prison are extremely
conducive to TB
transmission, resulting in exceptionally high annual TB transmission
risks of 90%. However – and this is
the point –
implementing current national cell occupancy recommendations alone
would reduce transmission probabilities
by 30%; implementation of
active case finding, together with the implementation of current
national cell occupancy recommendations,
would reduce transmission
by 50%.
In other words, even upon implementing good practice,
there would still be a high risk of TB transmission.
Implementation of active case finding, along with international
recommendations, could reduce transmission by as much as 94%.
The
study did not examine the reasonableness of the measures assessed.
The expert on behalf of the respondent, Professor Dheda,
stated that
even if the minimal South African standards of incarceration were
implemented, thereby leading to substantially less
over-crowding,
“there would still be an appreciable risk of transmission in
the order of more than 50%.” Accordingly,
he found, “it
cannot be said that it is more likely than not, if the South African
minimal standards of incarceration had
been applied, that Mr Lee
would not have had TB transmitted to him.” (At para 8 of the
report submitted to the Court by
Professor Dheda.)
186
Section
12(1) of the Bill of Rights.
187
Section
35(2)(e) of the Bill of Rights.
188
Carmichele
v Minister of Safety and Security and Another (Centre for Applied
Legal Studies Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC).
189
Id
at para 33.
190
Id
at para 36. The Court also stressed at para 39 that—
“
the
obligation of Courts to develop the common law, in the context of
the section 39(2) objectives, is not purely discretionary.
On
the contrary, it is implicit in section 39(2) read with section 173
that where the common law as it stands is deficient in
promoting the
section 39(2) objectives, the Courts are under a general obligation
to develop it appropriately. We say a ‘general
obligation’
because we do not mean to suggest that a court must, in each and
every case where the common law is involved,
embark on an
independent exercise as to whether the common law is in need of
development and, if so, how it is to be developed
under section
39(2). At the same time there might be circumstances where a court
is obliged to raise the matter on its own and
require full argument
from the parties.”
This
construction of section 39 of the Bill of Rights has been
strenuously contested – see Fagan “The secondary role
of
the spirit, purport and objects of the Bill of Rights in the common
law’s development”
(2010) 127
SALJ
611
; Davis
“How many positivist legal philosophers can be made to dance
on the head of a pin? A reply to Professor Fagan”
(2012) 129
SALJ
59
; and Fagan “A straw man, three red herrings,
and a closet rule-worshipper – a rejoinder to Davis JP”
(2012)
129
SALJ
788.
191
Everfresh
Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd
[2011]
ZACC 30
;
2012 (1) SA 256
(CC);
2012 (3) BCLR 219
(CC) (
Everfresh
).
192
Id
at para 61.
193
Judgment
of Moseneke DCJ, in which Ngcobo CJ, Cameron J, Jafta J, Khampepe J,
Nkabinde J and Van der Westhuizen J concurred.
194
Everfresh
above n 191 at paras 64-6.
195
Carmichele
above n 188 at para 62.
196
Stipulated
by the parties in their agreed statement of facts.
197
Carmichele
above n 188 at para 55 (footnotes omitted).
198
Id
at para 59.