Dudley Lee V Minister of Correctional Services: A Roadmap to Some Weak Links in the South African Custodial Chain

INTRODUCTION

On 11 December 2012 the majority of the South African Constitutional Court in Dudley Lee v Minister of Correctional Services upheld Mr Lee’s, the applicant, claim for delictual damages against the Department of Correctional Services (DCS). This paper is not aimed at commenting on the merits of the courts’ reasoning with regards to the common law test for factual causation, which constituted the main legal issue in casu. Instead it aims to highlight and explore, with reliance on the Dudley Lee case, how detainees’ right to health may be at risk in temporary places of detention that generally attract no or limited attention.¹ The case draws attention to a number of health pitfalls that a legal subject may face as he traverses the criminal justice system. By highlighting some of the junctures at which health risks may exist the judgment indirectly reveals that the Department of Justice and Constitutional Development (DOJC&D) and the South African Police Service (SAPS) ought also to be held accountable for giving effect to detainees’ right to health.

BACKGROUND

A brief synopsis of the judgments of the Western Cape High Court, Supreme Court of Appeal and Constitutional Court in this matter will be given below to provide a background to the discussion. Moreover, an overview of these judgments serves as a roadmap with discreet indications of the points on the custodial journey where detainees’ well-being may be exposed to risks even outside of correctional facilities.

The facts

Mr Lee was an awaiting-trial inmate from 1999 to 2004 at the admission section of Pollsmoor Correctional Centre. During this period he attended court approximately seventy times.² Every time he was transported to court ‘[inmates] were stuffed into vans like sardines [and] [a]t court they were placed into cells which were jam-packed.’³ Mr Lee shared a cell, which was meant to accommodate one person, with two other inmates.⁴ For a short period of time he shared a communal cell with approximately twenty-five other inmates. Three years after Mr Lee had been admitted to Pollsmoor he was diagnosed with tuberculosis. During the two-week period after his diagnosis he was detained in a cell with another inmate. He might still have been contagious at that time.⁵

Mr Lee did not have tuberculosis when he was admitted to Pollsmoor. Pollsmoor is known to be overcrowded and inmates generally spend up to 23 hours a day in a cell and in close contact with each other.⁶ Factors such as poor ventilation in cells, inadequate nutrition and a breakdown in the health care system due to inter alia insufficient staff posed a risk to health in general. Given that tuberculosis is an ‘airborne communicable disease which spreads easily especially in confined, poorly ventilated and overcrowded environments,’⁷ the conditions in Pollsmoor were ideal for the spread of the disease.

The facts demonstrate the DCS’ negligence in exposing inmates to the risk of contracting contagious diseases. Reflection on the same facts, however, also reveals that inmates are not only at risk while they are detained at correctional centres. This paper seeks to highlight and discuss some of the instances outside of correctional centres, when detainees’ health is possibly at risk, but where the legal duty to reduce such risks have not enjoyed the necessary attention it deserves.

The High Court and Supreme Court of Appeal judgments

Mr Lee instituted action against the DCS. He claimed that he had been infected as a result of the negligent conduct of the DCS. The Western Cape High Court held that the uncontrollable spread of tuberculosis at Pollsmoor constituted a negligent breach of the correctional authorities’ duty to protect inmates.⁸ The High Court found the DCS was delictually liable for causing Mr Lee’s infection with tuberculosis. This decision was later overturned by the Supreme Court of Appeal (SCA) where the issue of causation, one of the elements of a delict, proved to be contentious. It was held that evidence that reasonable precautions had not been taken by...