The Minister of Correctional Services v Lee

Dudley Lee was arrested in November 1999 and held in Pollsmoor prison for over four years until acquittal in September 2004. He was 54 and in reasonable health when imprisoned. After three years in prison, he contracted pulmonary tuberculosis and was treated for approximately six months. Mr Lee shared cells with other prisoners in overcrowded conditions. Despite experiencing symptoms (heavy coughing, weight loss) and requesting sputum tests which returned negative results, tuberculosis was only diagnosed coincidentally when he underwent an x-ray for an inguinal hernia operation at Victoria Hospital in May 2003. Upon diagnosis, Lee was placed in a communal hospital cell with other prisoners without tuberculosis for approximately 10 days before treatment commenced. Treatment began on 10 June 2003, the same day he was discharged back to his regular section, meaning he remained in contact with other prisoners while contagious. Evidence showed that the prison's tuberculosis management system was inadequate, with poor screening, failure to isolate contagious prisoners, inadequate staffing, and systemic failures in health-care delivery.

• Whether the state owed a legal duty to prisoners to take reasonable measures to prevent contagion by tuberculosis
• Whether the prison authorities' failure to maintain an adequate tuberculosis management system constituted negligence
• Whether wrongfulness should be recognized in respect of negligent failure to protect prisoners from tuberculosis infection
• Whether the negligent omission by the prison authorities caused the plaintiff's tuberculosis infection
• Whether causation can be established in systemic omission cases where the source of infection is unknown

The appeal was upheld. The order of the Western Cape High Court declaring the state liable was set aside and substituted with an order absolving the defendant from the instance. Each party was ordered to pay its own costs in both the trial court and the Supreme Court of Appeal.

The binding legal principles established are: (1) The state owes prisoners a legal duty to take reasonable measures to protect their physical welfare, including protection from foreseeable diseases like tuberculosis. This duty arises from section 12(1) of the Correctional Services Act 111 of 1998 and section 35(2)(e) of the Constitution, which guarantee prisoners conditions of detention consistent with human dignity. (2) Negligent failure to maintain adequate systems to protect prisoners from contagious diseases constitutes wrongful conduct that may ground delictual liability. (3) In determining factual causation where the alleged negligence consists of an omission (rather than a positive act), the proper test requires substitution of a hypothetical course of reasonable conduct and asking whether the harm would have been avoided had that reasonable conduct been followed. (4) To establish causation in systemic negligence cases, a plaintiff must prove both: (a) what specific reasonable measures ought to have been taken, and (b) that those measures would probably have prevented the harm. (5) Where the source of infection is unknown and some risk would remain even with reasonable precautions in place, a plaintiff cannot establish on the balance of probabilities that the negligent systemic omission caused the specific harm.

The Court made several important non-binding observations: (1) Prisoners are amongst the most vulnerable members of society to the failure of the state to meet its constitutional and statutory obligations, and there is every reason why the law should recognize claims for damages to vindicate their rights. To find otherwise would negate those rights. (2) The prospect of political support being mobilized by prisoners or mandamus proceedings being brought by prisoners to vindicate their rights is remote, making damages claims particularly important. (3) If prison authorities send a contagious prisoner to court in a crowded police van or court cell when they know or ought to know the prisoner is contagious, they would bear responsibility for consequent infections. (4) The Court expressed strong criticism of the state's conduct in the litigation, noting that the state contested allegations of inadequate health-care when it must have known it was defending the indefensible, given repeated reports by medical doctors, inspectors, and media coverage. (5) The Court noted that determining what constitutes reasonable tuberculosis management in a large, congested prison would require a substantial and complex systemic inquiry balancing many factors including security demands, financial resources, availability of trained personnel, isolation space, and disease incidence. (6) The Court observed that prison authorities cannot reasonably be expected to examine 4,000 prisoners with such regularity and thoroughness that tuberculosis will always be detected before a prisoner becomes contagious.

This case is significant in South African delictual law for several reasons: (1) It confirms that the state owes prisoners a legal duty of care to protect their physical welfare, grounded in both statutory provisions (Correctional Services Act) and constitutional rights (sections 12 and 35(2)(e) of the Constitution). (2) It establishes that wrongfulness should be recognized in respect of negligent failure to protect prisoners from foreseeable harm such as tuberculosis infection, rejecting arguments about undue burden and indeterminate liability. (3) It demonstrates the constitutional values-based approach to wrongfulness in delict. (4) Most importantly, it clarifies the law on causation in cases of systemic negligent omissions, holding that a plaintiff must establish not merely that negligence occurred and harm resulted, but that the harm would probably not have occurred if reasonable steps had been taken. (5) It illustrates the difficulty of establishing causation in systemic failure cases where the source of harm is unknown and some risk would remain even with reasonable precautions. (6) It affirms prisoners' rights while recognizing practical limitations on state liability. (7) The costs order demonstrates judicial discretion to depart from the usual rule where the state has defended indefensible conduct despite losing on a narrow technical point.