Authored by Sydny Kokott

The Supreme Court of Appeal handed down a landmark judgment with respect to the duty of police to ensure the safety of persons whilst in custody in June this year. The issue heard before the court was whether the failure on the part of the police to grant bail to the appellant, in conjunction with the responsibility of police to detain persons arrested for violent crimes separately to other detainees, gave rise to liability on the part of the police for the sexual assault of the appellant.

The claim was instituted by the appellant in delict for injury to his person, bodily integrity and dignity as well as the psychological impact that was caused by the sexual assault.

The facts in a nutshell

The appellant had been arrested and held in custody on charges of drunken driving and related charges. The Inspector on duty recommended that the appellant be released on bail given the nature of the charges and the fact that he posed no risk of flight, had stable employment, no previous convictions and had no outstanding warrants of arrest. Before bail could be posted, the appellant was transferred to another police station where the officers were not aware of his bail recommendation. The appellant was gang raped while in custody.

The appellant instituted a damages claim in delict for negligence on the part of the policemen on duty, alleging that they had breached their legal duty to ensure the appellant’s safety whilst in custody. He alleged that the police had failed to prevent harm to the appellant and that they had violated his constitutionally protected rights to dignity, freedom, security and bodily integrity. The appellant further argued that the police’s failure to separate the categories of detainees was in contravention of the Standing Order. Counsel for the respondent in the matter contended that all reasonable steps had been taken by the police in accordance with their legal duties.

Instituting a delictual action

In order to succeed with an action in delict, it is essential that all the elements of a delict are proven. Harmful conduct, causation, wrongfulness and fault in the form of intent or negligence must be proven to succeed with such a claim.

It was common cause that the appellant was sexually assaulted, which harmful conduct satisfied the element of wrongfulness. The only elements of the delictual action in dispute were those of negligence and causation.

The negligence enquiry

The court relied on the test for negligence as well-established in the case of Kruger v Coetzee. The questions put before the court included whether reasonable police officers in the position of the respondent would have foreseen the reasonable possibility of their conduct causing harm to the appellant and, further, whether reasonable police officers in the position of the respondent would have taken reasonable steps to prevent the harm in question. The court considered the police’s failure to release the appellant on bail and their failure to adhere to the provisions of the Standing Order to determine whether it was reasonably foreseeable that harm would ensue. The police submitted that it could not be determined “what categories of detainees were in the same cell with the appellant” and as such it could not be proven that the appellant was kept with violent crimes detainees. The court rejected this submission as it was information that was well within the “peculiar knowledge” of the police. Jansen JA in Marine & Trade Insurance Co Ltd v Van der Schyff held that “the failure of the respondent to reply or lead evidence in rebuttal of a fact peculiarly within [their] knowledge is taken into account when one decides whether a prima facie case has been made out.” The court noted that the harm to the appellant was undisputed, serving as a prima facie evidence that the appellant’s fellow detainees were so called “violent crimes detainees”. The reasonableness enquiry was further assessed by the court through an analysis of the degree of risk of harm, the gravity of harm and the burden of eliminating the risk of harm. The court further noted that the burden of eliminating the risk was not large as the police simply had to comply with their duties of separating categories of detainees and conducting regular patrols of the holding cells.

The question of causation

The court referred to the Minister of Safety and Security v Van Duivenboden with respect to the fact that a “plaintiff is not required to establish [a] causal link with certainty, but [rather] only 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 experience”. A retrospective analysis of the police records showed that detainees were arrested for robbery, assault and murder and that only the murder detainee was held separately. This contravention of the Standing Order, in conjunction with the failure of the police to release the appellant on bail, materially contributed to the appellant being harmed. The court further held that the conduct of the police was sufficiently closely linked to the harm caused to the appellant and, as such, both factual and legal causation were proven by the appellant.

The calculation of the quantum

Fairness served as the basis for the court’s calculation of the quantum for general damages. The appellant’s clinical psychologist’s evidence contributed largely to the determination of compensation for the physical and psychological harm caused to the appellant as a result of the sexual assault. The amount of R200 000.00 was awarded as compensation for harm to the appellant in addition to legal costs, including costs of two counsel.