Earl Flanagan v Minister of Safety and Security

Mr Earl Flanagan was arrested in the early hours of a Saturday for drunken driving and related offences. The investigating officer recommended that he be released on bail in terms of s 59(1) of the Criminal Procedure Act 51 of 1977. Due to a communication breakdown between the police station where he was charged and the station where he was detained, he was not released and remained in custody over the weekend. While in police detention, he was held together with other detainees, including those charged with violent crimes. During the early hours of the Monday following his arrest, Mr Flanagan was sodomised by a group of inmates while in custody. He instituted a delictual claim for damages against the Minister of Safety and Security. The High Court dismissed his claim, finding that the assault was not reasonably foreseeable and that his evidence that he warned police of possible harm was not credible.

The appeal was upheld with costs, including the costs of two counsel, and the Minister of Safety and Security was held delictually liable for the damages suffered by the appellant.

The case affirms and strengthens the principle that the police and the State bear a legal duty to protect detainees in their custody. It clarifies that failure to comply with statutory provisions and internal standing orders governing detention and bail can found delictual liability, particularly where such failures cumulatively render harm foreseeable. The judgment is significant in reinforcing accountability of the police for the safety and dignity of persons in custody.