CCT20/12

[2012] ZACC 30

2013 (2) BCLR 129 (CC)

2013 (2) SA 144 (CC)

2013 (1) SACR 213 (CC)

Nkabinde J Majority judgment

Cameron J dissenting judgment

11 December 2012

http://hdl.handle.net/20.500.12144/3674

Application for leave to appeal against a decision of the SCA: Minister of Correctional Services v Lee 2012 (3) SA 617 (SCA). The case was previously heard in the Cape Town High Court: Lee v Minister of Correctional Services 2011 (6) SA 564 (WCC)

Application for leave to appeal against a judgment of the Supreme Court of Appeal exempting the Minister of Correctional Services for liability for delictual damages suffered by the applicant as a result of contracting tuberculosis while in detention at Pollsmoor Maximum Security Prison, Cape Town. The applicant argued that systemic failure by the Correctional Services authorities caused him to contract tuberculosis while in detention, and that omissions by the authorities violated his constitutional right to freedom and security of the person (section 12) 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 (section 35). The Supreme Court of Appeal found that the causation aspect of the common law test for delictual liability had not been established. This conclusion was challenged, and the Court was in the alternative asked to develop the common law to prevent an unjust outcome. The majority held that it was unnecessary to develop the common law since applying the established test there was a probable chain of causation between the negligent omissions by the responsible authorities and the applicant’s infection with tuberculosis. The majority held that but for the unlawful conduct on the part of the responsible authorities, the applicant would not have been exposed to inmates who were actively infected tuberculosis. Leave to appeal was granted and the appeal upheld, with the matter remitted to the High Court for a determination on quantum. The minority found that the common law test for causation was not satisfied because it was impossible to trace the source of Mr Lee’s infection with TB and hence to establish with any probability that he had become infected from a negligent as opposed to a non-negligent exposure. He should not however be denied a remedy, and the Supreme Court of Appeal should have developed the common law to compensate a claimant negligently exposed to risk of harm, who suffers harm. The minority would have remitted the matter to the High Court for it to consider the way in which the common law ought to have been developed. Majority: Nkabinde J (Moseneke DCJ, Froneman J, Jafta J and Van der Westhuizen J concurring). Minority: Cameron J (Mogoeng CJ, Khampepe J and Skweyiya J concurring).