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IN THE HIGH COURT OF SOUTH AFRICA

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					IN THE HIGH COURT OF SOUTH AFRICA
(SOUTH EASTERN CAPE DIVISION)
                                                             Case No.: 186/01
                                                             Date delivered:
In the matter between:

LEON VAN DER SPUY                                                         Plaintiff

and

THE MINISTER OF CORRECTIONAL SERVICES OF
THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA                         Defendant


                                JUDGMENT


LEACH, J:

On 8 April 2000, the plaintiff sustained certain bodily injuries when he was shot

outside the North End Prison in Port Elizabeth.      In due course he instituted

action against the defendant, the Minister of Correctional Services, contending

that the person who had shot him had been a prisoner in the gaol who had

escaped from custody due to negligence on the part of the members of the

prison service acting within the course and scope of their employment with the

defendant, and that the latter was therefore vicariously liable to him for the

damages he had sustained in consequence of his injuries.



While admitting in his plea that the escape had taken place, that a number of

shots were fired at the material time and that the plaintiff was shot in the right

forearm during the course of the incident, the defendant denied that the plaintiff

had been shot by an escaping prisoner and averred that he had been shot by a

member of the public.     The defendant also denied that the prisoners had
                                           2


escaped due to negligence on the part of his servants at prison.              In the

alternative, the defendant pleaded that even in the event of this Court finding that

the plaintiff had in fact been shot by an escaping prisoner and that his servants

had been negligent in allowing the prisoners to escape, it was not reasonably

foreseeable that their conduct in allowing the escape would cause the plaintiff to

be injured in the circumstances in which his injuries were caused.



And so the matter came to trial.      At the outset, at the request of the parties, I

made an order separating the issues relating to the merits from those relevant to

the quantum of damages which are to stand over for determination at a later

stage.     Consequently I am presently only concerned with the merits of the

plaintiff’s claim.



Notwithstanding the terms of the plea, when the matter came to trial before me I

was informed from the Bar that the defendant now conceded that his employees

had been negligent in allowing the prisoners to escape from the prison on the

day in question.     That being so, the trial was truncated and limited solely to the

question of the identity of the person who had shot the plaintiff (whether he was

an escaping prisoner or member of the public) and whether the shooting of the

plaintiff was a reasonably foreseeable consequence of the defendant’s

employees’ negligence in allowing the prisoners to escape (the issue raised by

the defendant in its alternative plea). Ultimately the matter was argued not on the

issue of foreseeability but, rather, on whether the damage was too remote i.e. the
                                          3


issue of so called “legal causation”, in respect of which foreseeability is only one

of the factors to be taken into account. However, the parties appeared to assume

that the question of remoteness had been adequately raised as an issue in the

pleadings and I intend to proceed on the basis that their assumption is correct.



I therefore turn to deal with the events of the day in question.      As is apparent

from the photographs exhibit “A” and the sketch plan exhibit “C”, the main block

of the North End Prison is a somewhat forbidding monolithic edifice. Although it

is not set precisely according to the points of the compass, for ease and

convenience I intend to proceed on the basis that its outer walls run from north to

south and east to west. It is surrounded by a tarred road beyond which is a high

security fence.   The main entrance to the prison block is set in the centre of its

southerly face. A gate equipped with a swing boom is set into the security fence

near the south-west corner. South of the southern fence and to the east of the

boom gate that I have mentioned, is a grassy area set aside for visitors’ parking.

Public entrance to the secured area is obtained through a building set in the

security fence to the south of the main block, almost directly opposite its main

entrance. Apparently it is prison procedure to require persons visiting the prison

to pass through a security clearance process at this building before being

admitted into the secured area of the prison.      For purposes of this judgment I

shall refer to this building as the “visitors’ reception facility”. Between it and the

southern side of the prison, there is provision made for the parking of vehicles

within the security area.
                                          4


On the day in question, the plaintiff went to the prison with his girlfriend, one

Jennifer Nelson, in order to visit the latter’s daughter who was being detained in

the prison.        One Martin Radue, the boyfriend of Jennifer’s daughter,

accompanied them and they travelled to the prison in the motor vehicle of an

acquaintance, one Alison Chambers, who had offered them a lift.



It was the first time the plaintiff had been to the prison.    Arriving there at about

midday, he and his companions proceeded to the boom at the south-west corner

of the security fence and, having explained the purpose of their visit, were

allowed through.    They parked in front of the southern face of the main prison

block but certain prison officials told them that they were not permitted to do so

and directed them back through the boom to the visitors’ parking area that I have

already mentioned. Having parked there, the plaintiff and Jennifer left their other

two companions at the car and proceeded to the visitors’ reception facility.



According to the plaintiff, there was no one there.           It is apparent from the

evidence that a Ms Pressly and a Mr Ngibe, employees of the defendant, should

have been on duty in the building screening visitors to the prison. Whether they

were in fact there at the time the plaintiff says they were not or why the plaintiff

failed to see them, were not issues canvassed during the course of evidence but

are irrelevant to the outcome of the present proceedings.
                                         5


In any event, the plaintiff and Jennifer then proceeded back to the main prison

block by way of the boom gate. Entering the main entrance in the centre of the

southern side of the block, they went through the necessary formalities in order

to see Jennifer’s daughter.   Having done so, they left the building and, walking

around the south-western corner of the building, proceeded in a northerly

direction to the female section where they were finally able to see Jennifer’s

daughter.



As only two visitors at a time are allowed to see a prisoner, the plaintiff cut short

his visit and, leaving Jennifer with her daughter, walked back to where Allison’s

car was parked in the visitors’ parking lot in order to call Martin Radue and afford

him the opportunity of visiting Jennifer’s daughter.     On seeing him approach,

Radue left the car and, walking through the boom gate, passed the plaintiff and

went off towards the female section. The plaintiff proceeded on his way towards

the boom gate, unaware that a well planned prison escape was underway at that

very moment.



Behind the main doors in the southern face of the building is a fairly large room

divided into two by a set of narrowly spaced steel bars. The front section closest

to the main doors is a reception area.       Beyond the bars is an area in which

prisoners and their visitors can meet and talk to each other during a so-called

“contact visit”.   There is a barred gate leading from the one section into the

other.    Prisoners who receive what is known as “non-contact visits” remain
                                           6


separated from their visitors who do not pass through this gate but remain in the

reception area and speak through the bars to the detainees they are visiting.

The gate between the two sections should obviously be closed and locked during

a course of a visit and opened only after the prisoners are removed from the

visiting area and returned to the cells.



On the day in question, however, this procedure was not followed.        At the time

the plaintiff was visiting in the female section of the prison, three male prisoners,

Mzwandile Java, Jigima Masuku and Mzukisi Nabo were being visited in the

male section behind the main entrance at the south of the building. Two of them

received contact visits while the third received a non-contact visit. Unfortunately,

at some stage the gate in the bars between the two sections was opened in order

to allow visitors who had held contact visits to leave before the prisoners had

been secured in the cells.        As it was opened, the three prisoners I have

mentioned, together with their visitors stormed it, overpowered the only warder

who was duty in the reception area. They then kicked open the main door of the

prison and proceeded to run out of the building. This appears to have been part

of a well orchestrated escape plan as, at the same time, a person who had been

at the visitors’ reception facility, took out a firearm and fired off a shot before

threatening Ms Pressly with it. He then moved past her office, opened the door

in the visitors’ reception facility facing the main prison and fired a number of

shots towards the prison as the escaping prisoners and their associates ran from
                                            7


the prison block towards him, presumably in order to sow confusion amongst the

prison staff.



The firing of the first shot alerted the plaintiff to what was happening to his left i.e.

east of him as he approached the boom at the south-western corner of the

security fence. He saw the front wooden door of the prison block open and four

or five people, including the three escaping prisoners, run out and across the

tarmac towards the visitors’ reception facility.      One of the prisoners ran behind

that building to the security fence over which he proceeded to climb.               The

plaintiff confirmed that as the other persons neared the visitors’ reception facility,

a further number of shots were fired.           Shortly after that, he saw four people

coming out of the side door of the visitors’ reception facility and run into the

visitors’ car park.   Two of them were dressed in green prison uniform while the

other two were wearing civilian clothing.



He noticed that Allison had started her vehicle and was driving towards him.

Realizing that an escape was underway and appreciating that it was a dangerous

situation, he told her to get away and indicated that she should drive off.

Although her route out of the parking area was blocked by a vehicle partially

obstructing the ramp leading from the parking area to the road, she proceeded

past it and over the curb before turning to her left and driving away from the

prison.
                                          8


By this stage the two escapees and their companions had boarded a green

Nissan light delivery vehicle (commonly known as a “bakkie”, a description used

during the course of evidence which I shall use for the purposes of this

judgment).   This bakkie followed after Allison’s car, taking an almost identical

path. According to the plaintiff, as it bore down towards him, he clearly saw the

two escaping prisoners standing on its loadbody and that they were both armed

with handguns. The taller of the two, who had a silver firearm, pointed it at him

and fired two shots. He was emphatic that he saw the recoil of the weapon as it

was fired. He felt a blow to the arm as well as in the midriff and later ascertained

that he had been shot through the right arm and that his belt buckle had been

damaged, either by the bullet which had passed through his right arm or by the

other shot which had been fired at him.



The bakkie then drove off and he moved back to the boom gate where he

ascertained that the guard who had been there shortly before was no longer

there.   He then went back to the main entrance to the prison block where,

ultimately, he received medical assistance before eventually being removed by

ambulance.



The plaintiff was emphatic that he had been shot by one of the escaping

prisoners. In order to rebut this allegation, the defendant called a single witness,

one Corrine Pressly, who, as I have mentioned, was on duty in the visitors’

reception facility at the time of the escape.   She was first alerted to something
                                          9


being wrong when the first shot went off in close proximity to where she was

seated in an office in the visitors’ reception facility.   She turned around and

shouted to the people seated nearby to get down onto the floor and to crawl into

the bathroom. On doing so, she found herself face to face with a man who was

pointing a firearm directly at her.    This person then moved to the safety gate

controlling access into the area within the security fence. Pulling open the gate

(the evidence was that it was equipped with an electronic lock that was not

functioning) he then opened the door facing the prison block and, leaning through

it, fired several shots.   At that time she became aware that the front door of the

prison was open and that a number of prisoners and civilians were running from

the prison block towards the visitors’ reception facility. She immediately realized

that an escape was underway.          She testified that there was a great deal of

shouting and confusion and that, when those running from the prison block

reached her building, she was immediately confronted by one of the prisoners,

whom she identified as Nabo, who grabbed hold of her, swore at her and told her

that she was coming with them. Having no wish to be dragged off as a hostage,

she set up stout resistance. She told him not to be stupid and started hitting him

with the metal detecting instrument she had in her possession (usually used to

run over visitors before they enter the prison to check that they have no

concealed metal objects with them). With this, the other escaping prisoner also

grabbed hold of her and the struggle continued.
                                        10


Ms Pressly is a fairly short woman but I hope she will forgive me for describing

her as being of generous proportions. She put up stiff resistance and, although

her uniform was torn, the escapees were not able to dislodge her from where she

had wedged herself into a doorway, even though they dispossessed her of her

metal detector with which they struck her.     Eventually she kicked out, striking

Nabo in the groin and causing him to stagger backwards. With this, he and the

other escaping prisoner left her alone and ran towards the car park.      Looking

after them, she saw the two of them and a person dressed in civilian clothes

climb onto the back of the bakkie which was then driven off following behind

another vehicle which also went out of the car park (presumably the vehicle of

Allison). According to her, she saw a person (presumably the plaintiff) who she

felt had tried to stop the bakkie but stated that the civilian on the back, who was

armed with a firearm, lifted up his hand and fired three shots at him. The bakkie

then drove away.



The essential difference between this version, presented by Ms Pressly in her

evidence in chief, and that of the plaintiff was the identity of the person who had

shot him.   However, notwithstanding Ms Pressly’s evidence, I am satisfied that

the plaintiff was indeed shot by one of the escaping prisoners as he alleges.

The plaintiff, who impressed as a genuine and honest witness, was in a far better

position than Ms Pressly to identify the person who in fact shot at him, something

she readily conceded under cross-examination. Moreover, she had clearly been

through a terrifying experience immediately before the shooting of the plaintiff
                                          11


took place, an experience that has obviously wrought havoc with her.            When

obliged in the witness box to call to mind the events of that day, she shook like a

leaf and at times, was unable to speak or control her emotions. She admitted to

having been haunted by the experience and has, apparently, been boarded by

the Department of Correctional Services as a result.        She also admitted under

cross-examination that she may have been mistaken in regard to the person who

shot from the back of the bakkie. I have no doubt that she genuinely believes that

it was the civilian who fired at the plaintiff but, in the light of her concession that

she may be mistaken in that regard and the effect which the terrifying experience

she underwent has had upon her, I am satisfied that she is probably mistaken

and that there is no reason for me to disbelieve the plaintiff. Indeed I did not

understand Mr Scott, who appeared on behalf of the defendant, to seriously

contend otherwise.



During the course of argument, plaintiff’s counsel raised a further factual issue

which it is convenient now to discuss. Although there was no direct evidence as

to when the two escaping prisoners who ended up on the back of the bakkie

obtained possession of the firearms they had when the plaintiff was shot, it was

submitted on behalf of the plaintiff that it could be inferred that such weapons had

been smuggled to them within the prison block itself, that the escapee’s visitors

had therefore not been properly searched before they were allowed to enter the

prison and that the person responsible for ensuring that they were properly

searched, Ngibe, an employee of the defendant, had not been called to rebut
                                          12


such inference. Accordingly, so the argument went, as this inference favoured

the plaintiff, it should therefore be drawn against the defendant.



The drawing of inferences in favour of one party upon his opponents failure to

call a witness is often a difficult horse to ride – compare for example Galante v

Dickinson 1950 (2) SA 460 (A) at 465 and Titus v Shield Insurance Co. Ltd 1980

(3) SA 119 (A) at 133.     What is clear, however, is that an inference adverse to

the party who fails to call a material witness can only be drawn where that which

it is sought to infer can, in truth, be regarded as an inference and not mere

speculation.    There can of course be no inference unless there are objective

facts from which to infer the other facts which it is sought to establish but, if there

are no positive facts proved from which inference can be made, the method of

inference fails and one is left with speculation or conjecture – see for example

Motor Vehicle Assurance Fund v Dubuzane 1984 (1) SA 700 (A) at 706 and the

authorities there cited.



In the present case, for example, had the evidence established that the two

escapees were in possession of firearms when they reached the visitors’

reception facility, the inference may well have been almost inescapable that the

persons who had visited them in the main prison block had smuggled the

weapons to them. But the evidence of Ms Pressly clearly excludes that to have

been the case. As I have mentioned, she described in some detail how she had

wrestled with the two detainees.       In particular, she described how Nabo had
                                        13


grabbed hold of her clothing with both his hands and that the other escapee who

had confronted her had also grabbed hold of her. She fought them off and was

not dislodged from her resistance by them striking her with the metal detector

that they had taken from her. Had her assailants already been in possession of

firearms at that stage they would, in all probability, have had them in their hands

which does not appear to have been the case. Moreover, if either of them been

in possession of a firearm, he would almost undoubtedly have threatened Ms

Pressly with it. This, too, did not happen.   From these facts, the only inference

which can be made is not that which the plaintiff has argued should be drawn

but, on the contrary, that the two escaping prisoners were not yet in possession

of the firearms at the time they escaped from the main prison block until some

stage after Ms Pressly had repelled their attempt to abduct her.    As the plaintiff

saw them both with firearms shortly after they boarded the bakkie that was

waiting for them in the parking area, the inference is irresistible that they came

into possession of their weapons for the first time at about that time.     In any

event, notwithstanding the defendant’s failure to call Ngibe, I cannot find as a

matter of inference that the escaping prisoners’ visitors had equipped them with

firearms before they escaped from the main prison block.



That then brings me to consider the argument whether the injuries plaintiff

sustained as a result of being shot by one of the escaping prisoner are too

remote from the admitted negligence of the defendant’s servants in allowing the

prisoners to escape in the first place for the defendant to be held liable for
                                         14


damages.      In regard to this issue, it is important at the outset to call to mind

precisely what I have been asked to decide and it is necessary to remind oneself

that causation in the law of delict involves two distinct enquiries. The first is

whether the defendant’s wrongful act was a cause in fact of the loss suffered by

the plaintiff – so-called “factual causation”, determined by the “but-for” test as to

whether a postulated cause is a causa sine qua non of the loss. If it is, then the

second enquiry is as to so-called “legal causation” i.e. whether and to what

extent the defendant should be held liable for the loss sustained by the plaintiff –

see: International Shipping Co. (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 700 –

701 and Minister of Safety and Security v Van Duivenboden) 2002 (6) SA 431

(SCA) at 448 – 9 para. [24]. It is this latter inquiry which is often referred as the

issue of “remoteness of damage” – see: Siman & Co. v Barclays National Bank

1984 (2) SA 888 (A) at 914 F – H and the authorities there cited.



As I understood the parties, it is common cause that the negligence of the

defendant’s servants which led to the three prisoners escaping, constituted a

cause of the plaintiff being shot (as had it not been for the escape, the plaintiff

would not have been injured) and, that being so, the issue is solely one of “legal

causation” viz. whether the loss suffered by plaintiff should be regarded as being

too remote for the defendant to be held liable.



That the issue is one of legal causation must be borne in mind in considering the

effect of the admission of negligence made by the defendant.        In the course of
                                                15


their argument, both parties referred to the well known test of culpa set out by

Holmes JA in Kruger v Coetzee 1966 (2) SA 428 (A) at 430E – F as follows:



      ”For the purposes of liability culpa arises if –

      (a)     a diligens paterfamilias in the position of the defendant –

              (i)      would foresee the reasonable possibility of his conduct
                       injuring another in his person or property and causing him
                       patrimonial loss; and

              (ii)     would take reasonable steps to guard against such
                       occurrence; and

      (b)     the defendant failed to take such steps”.



Although this is the classic formulation which has consistently been applied, the

Supreme Court of Appeal recently restated the test in Mukheiber v Raath and

Another 1999 (3) SA 1065 (SCA) at 1077 E – F by adopting the following test as

proposed by Prof. Boberg in the Law of Delict at 390:



      “For the purposes of liability culpa arises if –

      (a)     a reasonable person in the position of the defendant –

              (i)      would have foreseen harm of the general kind that actually
                       occurred;

              (ii)     would have foreseen the general kind of causal sequence by
                       which that harm occurred;

              (iii)    would have taken steps to guard against it, and

      (b)     the defendant failed to take those steps”.



This latter formulation involves a narrower test for foreseeability than that

propounded in Kruger v Coetzee, supra by relating it to the consequences

produced by the conduct in question and effectively conflating negligence and
                                      16


so-called “legal causation” in order to eliminate the problems associated with

remoteness – see the judgment of Scott JA in Sea Harvest Corporation v Duncan

Dock Cold Storage 2000 (1) SA 827 (SCA) at 839.



Essentially, the test in the Mukheiber case, supra involves a consideration both

of factual causation and of remoteness in order for culpa to be established. But

Scott JA stated in the Sea Harvest case, supra at 839 E – F that he had not

understood the judgment in the Mukheiber case to have unequivocally embraced

the relative theory of negligence and went on to observe that there probably can

be no universally applicable formula appropriate to every case. Clearly, the

defendant’s concession that his servants had been negligent in permitting the

escape to take place did not embrace an admission that a reasonable person in

their position would have foreseen harm of the general kind that actually

occurred and the general kind of causal sequence by which that harm took place

as this would have amounted to an admission that the loss suffered by the

plaintiff was not too remote.   Instead both counsel founded their respective

arguments upon the test prescribed by Holmes JA in Kruger v Coetzee, supra

and conducted the matter on the footing that the admission of negligence was

made solely in respect of the escape and not in regard to the subsequent harm

suffered by the plaintiff.



Bearing that in mind, I turn to consider the question of remoteness. In dealing

with “legal causation” (or whether the damages can be regarded as being too
                                              17


remote) Corbett JA in the International Shipping Company Case, supra referred

with approval to the following summary by Flemming in The Law of Torts 7th ed at

173:



       “The ……….. problem involves the question whether, or to what extent, the defendant
       should have to answer for the consequences which his conduct has actually helped to
       produce. As a matter of practical politics, some limitation must be placed upon legal
       responsibility, because the consequences of an act theoretically stretch into infinity.
       There must be a reasonable connection between the harm threatened and the harm
       done. This inquiry, unlike the first, presents a much larger area of choice in which legal
       policy and accepted value judgments must be the final arbiter of what balance to strike
       between the claim to full reparation for the loss suffered by an innocent victim of
       another’s culpable conduct and the excessive burden that would be imposed on human
       activity if a wrongdoer were held to answer for all the consequences of his default.”


In S v Mokgethi en Andere 1990 (1) SA 32 (A) at 39 – 40 Van Heerden JA

mentioned a number of criteria referred to in various authorities as being relevant

to the determination of legal causation, including the absence of a novus actus

interveniens, approximate cause, direct cause, foreseeability and “adekwate

veroorsaking” before concluding “at 40 I – 41 A:



       “Wat die onderskeie kriteria betref, kom dit my ook nie voor dat hulle veel meer
       eksak is as ‘n maatstaf (die soepele maatstaf) waarvolgens aan die hand van
       beleidsoorwegings beoordeel word of ’n genoegsame noue verband tussen
       handeling en gevolg bestaan nie. Daarmee gee ek nie te kenne nie dat een of
       selfs meer van die kriteria nie by die toepassing van die soepele maatstaf op ’n
       bepaalde soort feitekompleks subsidiêr nuttig aangewend kan word nie; maar
       slegs dat geen van die kriteria by alle soorte feitekomplekse, en vir die
       doeleindes van die koppeling van enige vorm van regsaanspreeklikheid, as ’n
       meer konkrete afgrensingsmaatstaf gebruik kan word nie.”


Similarly, in Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4)

SA 747 (A) at 765 A – B (in a passage referred to with approval in OK Bazaars
                                              18


(1929) Ltd v Standard Bank of South Africa Ltd 2002 (3) SA 688 (SCA) at 697 E

– F) Corbett CJ described the test as being:



       “…. a flexible one in which factors such as reasonable foreseeability, directness,
       the absence or presence of a novus actus interveniens, legal policy,
       reasonability, fairness and justice all play their part .”


Importantly, it was also pointed out by Botha JA in Smit v Abrahams 1994 (4) SA

at 17 E – F that it is wrong to regard the question of reasonable foreseeability as

being the single decisive criteria in the determination of liability and that while

reasonable foreseeability can be used as a subsidiary test in the application of

the flexible approach, it did not displace it.



In the Sea Harvest case, supra Scott JA stated (at 840 D – E):


             “The problem is always to decide where to draw the line, particularly in those cases
             where the result is readily foreseeable but not the cause. This is more likely to
             arise in situations where, for example, one is dealing with a genus of potential
             danger which is extensive, such as fire, or where it is common cause there is
             another person whose wrongdoing is more obvious than that of the chosen
             defendant. It is here that a degree of flexibility is called for. Just where the
             inquiry as to culpability ends and the inquiry as to remoteness (or legal causation)
             begins – both of which may involve the question of foreseeability – must therefore
             to some extent depend on the circumstances . . . . . In many case the facts will be
             such as to render the distinction clear, but not always. Too rigid an approach in
             borderline cases could result in attributing culpability to conduct which has
             sometimes been called negligence ‘in the air’”.



The emphasis in this passage is mine. The learned judge of appeal’s comments

are particularly relevant to the present case where it is indeed common cause

that the wrongdoing of the escapee who shot the plaintiff is more obvious than

that of the defendant’s servants and where the issue is whether the defendant
                                          19


should be held liable for the plaintiff’s damages by reason of his servants having

negligently allowed the escapee to be in a position to shoot the plaintiff.

However, although a new intervening cause such as the negligent or intentional

wrongful conduct of a third party may often result in the harm suffered being too

remote, each case must be decided in the light of its own particular facts and

circumstances and, depending on the facts, an intervening cause may well not

break the chain of causation.     As was said by Nugent JA in Ok Bazaars (1929)

Ltd v Standard Bank of South Africa Ltd supra at 699 para. [33]:



      “I have already drawn attention to the fact that the test for legal causation is, in
      general, a flexible one. When directed specifically to whether a new intervening
      cause should be regarded as having interrupted the chain of causation (at least
      as a matter of law if not as a matter of fact) the forseeability of the new act
      occurring will clearly play a prominent role (Joffe & Co Ltd v Hoskins and Another
      1941 AD 431 at 455-6; Fischbach v Pretoria City Council 1969 (2) SA 693 (T);
      Ebrahim v Minister of Law and Order and Others 1993 (2) SA 559 (T) at 566B-C;
      Neethling et al (supra at 205); Boberg The Law of Delict at 441). If the new
      intervening cause is neither unusual nor unexpected, and it was reasonably
      foreseeable that it might occur, the original actor can have no reason to complain
      if it does not relieve him of liability”.


Essentially, it seems to me that a common sense approach has to be adopted

having regard to the various criteria mentioned in these authorities, including the

question of foreseeability, in order to consider whether the harm complained of

should be regarded as being too remote. Bearing all of this in mind, I turn to the

facts of the present case.



For some inexplicable reason, details of the criminal backgrounds of the

escapees and any propensity on their part to comment crimes of violence were

not placed before me.     All I know is that during the course of her testimony Ms
                                        20


Pressly stated that one of the escapees was being held for murder and was

“quite dangerous” and that she knew that he was a “dangerous person”, although

she was unable to recall whether he was classified as a dangerous prisoner.

More detailed evidence may well have been vitally important. This is clear from a

brief consideration of a number of recent decisions in our courts in which

negligent failures to restrain dangerous persons who then caused injury have

attracted liability. Thus, in Seema v Lid van die Uitvoerdenderaad vir

Gesondheid, Gauteng 2002 (1) SA 771 (T), a case in which a seriously disturbed

mental patient who was negligently allowed to escape from a mental institution

proceeded to kidnap and rape the plaintiff’s minor daughter, the defendant,

whose servants had allowed the escape was held liable for damages. Similarly,

the Minister of Safety and Security was held liable to a plaintiff who was shot by a

person where a number of police officers who knew that he was unfit to possess

a firearm and was inherently dangerous had negligently failed to take steps

under s. 11 of Act 75 of 1969 to ensure that he be deprived of his weapons –

see: Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA).

The Minister was also held liable where a plaintiff was raped after the police had

negligently allowed a dangerous criminal who was likely to commit further sexual

offences to escape from custody some months before – see: Van Eden v

Minister of Safety and Security 2003 (1) SA 389 (SCA) .



In the last mentioned case, stemming from the State’s constitutional duties and

as the police had held control over the rapist who was known to them to be a
                                        21


dangerous criminal who was likely to commit further sexual offences against

women should he escape, and as measures to prevent the escape of such a

dangerous criminal could reasonably and practically have been required of the

police, the Supreme Court of Appeal held that the police had owed the appellant

a duty to act positively to prevent the escape, that the existence of such a duty

accorded with the legal convictions of the community and that there were no

considerations of public policy militating against the imposition of such a duty –

compare further: Carmichele v Minister of Safety and Security 2001 (4) SA 938

(CC). Similarly, in the present case, it seems to me that the defendant servant's

were under a duty to protect individuals by taking active steps to prevent

dangerous persons held in the prison from escaping into the community if they

were likely to commit acts of violence if they did so escape.



Although the reasoning in Van Eden’s case was relevant to the assessment of

unlawfulness on the part of the police (causation in that case having been

admitted) it also seems to me to be relevant to the question of causation. After

all, legal policy plays its part in the assessment of remoteness and it seems to

me that where employees of the State owe a duty to act positively to prevent a

dangerous criminal being freed from the bonds of custody, the existence of that

duty is relevant to the issue of legal causation when the criminal proceeds to

escape and then injures a member of the public as the possibility of that

consequence taking place is directly related to the duty to prevent the escape in

the first place.
                                        22




In addition, while foreseeability may only be one of the criteria to which one must

have regard in the assessment of remoteness, it is an important factor to be

taken into account. In this regard it is important to remember that while the

general manner of its occurrence must be reasonably foreseeable, the precise or

exact manner in which the harm occurs need not be foreseeable – see for

example, the Sea Harvest case, supra, at 840 B – C.



In my view, the general manner of harm suffered by the plaintiff in the present

case was reasonably foreseeable. The implication of harm being caused during

the course of a prison escape must be anticipated. Persons locked up in prison

often resort to the use violence to overcome persons who resist their attempts to

escape. By the same token, in my view, the possibility of violence being done to

persons other than those who actually seek to actively oppose a prison escape is

also foreseeable.      For example, hostages may be taken and injured in the

process, innocent persons may be accidentally struck by flying bullets or, indeed,

intentionally injured either to cause a diversion or in an attempt to avoid a later

identification.   These are but a few of numerous examples which readily spring

to mind.



This leads to what is to me a crucial issue viz. whether the plaintiff was shot in

order to facilitate the escape or whether the shooting was in no way connected

thereto. The latter might be the case if, for example, the escapee for some
                                           23


reason wished to harm the plaintiff who, purely by co-incidence, happened to be

in the vicinity at the time.   On the other hand, if the plaintiff was shot in order to

create a disturbance and to discourage pursuit of the bakkie as it was driven

away from the prison, the shooting could be regarded as being part and parcel of

the escape itself.



The latter is far more probable than the former. We do not have the advantage

of the testimony of the person who shot the plaintiff to explain his actions, but

there is nothing to indicate that he was in any way known to the plaintiff. The

most probable explanations which present themselves are that he thought, by

shooting at the plaintiff, he would contribute to the chaos the events up until then

had caused and that he would discourage any person from pursuing the bakkie,

or that he shot the plaintiff because he perceived him to be attempting to prevent

his flight.



In regard to this latter issue, although the plaintiff testified that he did not in fact

attempt to stop the persons in the bakkie or prevent them from driving away, the

very real possibility exists that those on the bakkie thought that he was in fact

attempting to do so.     He had certainly indicated to Alison that she should drive

away and his actions at that time may have been misinterpreted by those on

the bakkie.      Certainly they were so misinterpreted by Ms Pressly who, as I

have said, testified that she felt that the person who was shot had attempted to

stop the bakkie.     In my view, the possibility of harm being done to any persons
                                          24


who attempted to prevent escaping convicts from fleeing from a prison is readily

reasonably foreseeable as is the possibility of harm being done in those

circumstances to a person whose actions, although not intended to prevent the

escape, might be misinterpreted by those escaping.



In the circumstances, I am satisfied that although reasonable man may possibly

not have foreseen the precise manner in which the plaintiff came to be injured

(about which I express no view), as a reasonable man would generally have

foreseen violence being done to persons in the vicinity of a prison should

prisoners (particularly potentially dangerous prisoners) attempt to escape, the

shooting of the plaintiff should be regarded as being part and parcel of the

general type of harm which was reasonably foreseeable.



Taking this into account and bearing in mind the other factors that I have

mentioned, including the evidence that at least one of the escapees was a

dangerous person and that the defendant and his servants owed a duty to the

public at large to prevent potentially dangerous persons escaping into the

community, I have concluded that the damage suffered by the plaintiff was not so

remote that the chain of causation should be regarded as having been

interrupted and that the defendant is therefore liable to the plaintiff for whatever

damages he may have suffered as a result of the injuries he sustained in the

shooting. The plaintiff is accordingly entitled to a declaratory order to that effect.
                                          25


That brings me to the question of costs. The relevant question here is whether a

costs order should issue at this stage the proceedings.          Where the merits of a

dispute are decided as a separate issue at the outset with the issues relevant to

the quantum of the damages standing over, the courts have, in appropriate

cases, issued a costs order in favour of the plaintiff who succeeds on the merits –

see for e.g. Baptista v Stadsraad van Welkom 1996 (3) SA 517 (O), Faiga v

Body Corporate of Dumbarton Oaks & Another 1997 (2) SA 651 (W) at 669 and

Grootboom v Graaff-Reinet Municipality 2001 (3) SA 373 (E) at 381 – 382.

However, this is not an inflexible rule,and the facts of each case must be taken

into account to consider whether it is appropriate in any given case for a costs

order to issue at this stage. One of the relevant factors to be taken into account

is whether the plaintiff will ultimately recover costs on the High Court scale and it

would certainly be grossly unfair to the defendant to award the plaintiff High

Court costs at this stage of proceedings when there is the possibility of the

ultimate award falling within the jurisdictional limits of the magistrate’s court.



In casu, although there is no detailed medical evidence before me, I know that

the plaintiff suffered a gunshot wound of the arm. It is certainly premature for me

to comment on the advisability of his actions in suing in High Court, but his

injuries do not appear to me to be so severe that he will undoubtedly recover

costs on the High Court scale notwithstanding the amount of his claim being far

in excess of the upper jurisdiction of the magistrate’s court.
                                          26


In these circumstances I think it is fair to both parties to reserve the question of

costs for final determination once the quantum of damages has been resolved.



In the light of the aforegoing I grant the following order:



       1.     The defendant is declared to be liable to the plaintiff for whatever

              damages he may have suffered arising from the bodily injuries he

              sustained in the shooting incident which occurred outside the North

              End Prison on 8 April 2000 which is the subject of these

              proceedings.



       2.     Costs are reserved.



_________________________
L.E. LEACH
JUDGE OF THE HIGH COURT


                                     Summary

Negligence -- remoteness of harm -- prison warders negligently
allowing prisoners to escape -- during course of escape, prisoner
intentionally shooting plaintiff, a member of the public who happened
to be near the scene -- damage suffered by the plaintiff not too
remote for Minister of Correctional Services to be held liable to the
plaintiff.

Costs -- merits decided as a separate issue at the outset -- declarator
in favour of the plaintiff -- whether plaintiff should be awarded costs at
that stage or whether costs should stand over until determination of
damages.
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