n South African Law Journal - Factual causation : which 'conditio' must be a 'sine qua non'? A critical discussion of the decision in : notes

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



The type of situation that arose in 2013 (2) SA 144 (CC) (' (CC)') presented the courts with a challenging problem concerning factual causation. Lee had been incarcerated at a maximum security prison in Pollsmoor between 1999 and 2004. After three years in prison, he was diagnosed with tuberculosis. He did not have the disease when he arrived at the prison. The conditions at Pollsmoor were described by the Constitutional Court as 'ideal ... for transmission' of TB, as the prison was 'notoriously congested and inmates [were] confined to close contact for as much as 23 hours every day', and TB is 'an airborne communicable disease which spreads easily, especially in confined, poorly ventilated and overcrowded environments' (para 8, per Nkabinde J for the majority). It was accepted, by both the Supreme Court of Appeal and the Constitutional Court, that the authorities at the prison had acted wrongfully by reason of their failure 'to have reasonably adequate precautions against contagion' ( (CC) para 37; see too 2012 (3) SA 617 (SCA) para 35 (' (SCA)')). It was accepted, too, that they had been negligent, as there was 'a negligent breach on the part of the responsible authorities for failing to maintain an adequate system for management of TB' ( (CC) ibid). All that remained was to determine 'whether the negligent omission caused the applicant harm - in becoming infected with TB' (ibid).

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