oa Litnet Akademies : 'n Joernaal vir die Geesteswetenskappe, Natuurwetenskappe, Regte en Godsdienswetenskappe - Vonnisbespreking : aanspreeklikheid van die staat vir tuberkulose in die gevangenis : regte

Volume 10, Issue 2
  • ISSN : 1995-5928



In this case the plaintiff contracted tuberculosis (TB) while in prison. He sued the Minister for damages on the basis that the poor prison health management had resulted in his becoming infected. The high court upheld the claim, but the supreme court of appeal (SCA) dismissed it, mainly because the court found that there was no factual relationship between the negligence of the authorities and the contraction of TB by the plaintiff. In the constitutional court (CC) the majority held that the SCA, in applying the but-for test for factual causation, adopted rigid deductive logic which necessitated the conclusion that because the plaintiff did not know the exact source of his infection, his claim had to fail. The CC held that our law has always recognised that the test for factual causation should be applied flexibly. Applying this approach, it held that it was more probable than not that the plaintiff had contracted TB as a result of the negligence of the prison authorities and that the claim should succeed. But the minority did not agree. It held that the plaintiff could not show that reasonable measures would probably have saved him from contracting TB. It agreed with the SCA that the plaintiff could not satisfy the but-for test for causation. It found, however, that because of the resultant injustice in cases such as this the court should develop the common law and it would therefore have remitted the matter to the high court for this purpose.

The authors support the flexible approach to factual causation where common sense rather than strict logic should prevail, and where the question as to what is more probable should not be based on a mathematical thought process but rather on the practical way in which the ordinary person's mind works against the background of everyday-life experiences. The outcome that factual causation was present on a balance of probabilities is therefore supported. Where an application of the but-for test, even in its flexible form, would lead to a denial of liability in certain cases because it was more probable than not that the defendants had not caused the harmful result, this consequence may be unacceptable, since justice may be denied. (An example would be the facts in the English case of [2002] UKHL 22, [2003] 1 AC 32.) In these circumstances the but-for test could be circumvented in our law by an approach which would engender a fairer outcome by holding negligent defendants liable. This could perhaps be achieved by legal causation where the basic question is whether there was a sufficiently close relationship between the defendant's negligent conduct and the victim's damage for the damage to be attributed to the defendant, taking into account policy considerations based on fairness, reasonableness and justice. To ascertain whether such a relationship existed, the increased risk of damage caused by the negligent conduct, as suggested by the minority, may play a significant part.

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