n South African Law Journal - Factual causation after : notes

Volume 131, Issue 3
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



In 2013 (2) SA 144 (CC), the Constitutional Court held the state liable in delict for a negligent failure to put in place a reasonable system to guard against the contagion of tuberculosis among prisoners at Pollsmoor Prison. The plaintiff had contracted tuberculosis while awaiting trial in prison. The key issue on appeal was whether the delictual requirement of factual causation was satisfied on the facts. A bare majority of five Justices held that it was, overturning the unanimous contrary decision of the Supreme Court of Appeal ( 2012 (3) SA 617 (SCA)). Understandably, some have welcomed the outcome of the case. After all, the evidence before the court revealed the hopeless inadequacy of Pollsmoor's healthcare system at the time. There can be little doubt that prisoners' rights to life, personal security, and dignified conditions of detention in terms of ss 11, 12 and 35 of the Constitution of the Republic of South Africa, 1996 were systematically violated. By imposing delictual liability, the courts held the state publicly accountable for these appalling failures.

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