The Minister of Safety and Security and Johan Jacobus Becker v Pieter Nicolaas Rudman and Petrus Botha Schabort

On 6 October 1997, Roald John Rudman, a toddler aged two years and eight months, fell into an unsecured swimming pool at his family's Pretoria home. His stepbrother Bo had removed the safety net and left the pool area unsecured. Kobus Pienaar, who arrived to swim, found Roald in the pool and began cardio-pulmonary resuscitation (CPR). When police Sergeant Becker arrived at the scene, he instructed Kobus to stop CPR, examined the child, concluded he was dead, and covered him with a duvet. Approximately 10 minutes later, other police officers and paramedics arrived, resumed CPR, detected a pulse, and transported Roald to hospital. Roald survived but sustained severe hypoxic brain damage resulting in spastic tetraplegia with epileptic tendency. Mr Rudman (the father) sued the Minister of Safety and Security and Becker for damages, claiming Becker negligently stopped CPR. The Minister and Becker joined Bo as third party, claiming he was negligent in leaving the pool unsecured.

• Whether Becker's actions in stopping CPR performed by Kobus were wrongful and negligent
• Whether Becker had a legal duty to perform CPR on the child
• Whether Becker's conduct was causally connected to the brain damage suffered by Roald
• Whether the Apportionment of Damages Act 34 of 1956 applied to successive wrongdoers
• How to allocate liability for damages between Becker and Bo

The appeal succeeded with costs. The order was amended to declare that: (1) The Minister and Becker are liable jointly and severally for one half of the damages the plaintiff proved he suffered in his personal and representative capacities; (2) Bo (the third party) is jointly and severally liable with the Minister and Becker for the damages payable by them. The trial court's order holding them liable for the full extent of damages with Bo's contribution at 20% was set aside.

The binding legal principles established are: (1) A positive act that interferes with life-saving measures being administered to another is prima facie wrongful; (2) Police officers do not have a legal duty to perform CPR or save drowning victims, as public policy considerations militate against imposing such duties given their primary law enforcement functions; (3) Negligence can be established where a person undertakes responsibility requiring special skill or knowledge which they lack, particularly where the consequences of intervention are potentially catastrophic; (4) Where it is impossible to determine what portion of indivisible damage was caused by successive wrongdoers and all available evidence has been led, liability should be apportioned equally; (5) Section 2 of the Apportionment of Damages Act 34 of 1956 requires that joint wrongdoers caused "the same damage" - where one wrongdoer is liable only for part of the total damage, the Act does not apply and common law principles govern any right of recourse; (6) A subsequent wrongdoer's negligent act does not constitute a novus actus interveniens where it was an inherent risk created by the first wrongdoer's negligence and was reasonably foreseeable.

Van Heerden AJA (in minority) observed that while imposing a duty on police to perform CPR might accord with moral convictions of the community, the legal convictions of the community do not demand this. Farlam JA observed that where common law applies to contribution between wrongdoers (rather than the Act), the right of recourse may simply be reimbursement of half of what was paid, not a proportion based on respective degrees of fault, but declined to finally determine this issue as it was not fully argued. The Court also noted (without deciding) that there might be particular aspects of police activity where public interest is best served by denying an action for negligence. The judgment emphasized the importance of avoiding hindsight bias in assessing negligence - the "insidious subconscious influence of ex post facto knowledge" - and that the test is the foresight of a reasonable person, not "the hindsight of the fool."

This case is significant for clarifying several important principles in South African delictual law: (1) It addresses the test for wrongfulness in omissions versus positive acts, confirming that positive acts causing harm are presumed unlawful while omissions require proof of a legal duty; (2) It clarifies that police officers do not have a general legal duty to save people from drowning or perform CPR, as this would disrupt effective policing and require substantial additional training and resources; (3) It applies the principle that negligence can consist not in being ignorant, but in undertaking responsibility beyond one's skill and knowledge (imperitia culpae adnumeratur); (4) It addresses successive wrongdoers and causation where it is impossible to determine what portion of damage each caused, adopting the approach that liability should be split equally when all available evidence has been led; (5) It clarifies the interpretation of "the same damage" under s 2 of the Apportionment of Damages Act 34 of 1956, holding that the Act does not apply where one wrongdoer is liable only for part of the total damage.