THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA
JUDGMENT

Case no:  572/08

THE MINISTER OF SAFETY AND SECURITY

First Appellant

THE CHARGE OFFICE COMMANDER OF THE

Second Appellant
HAMMARSDALE POLICE STATION

MUSAWAKHE MORRIS MWANDLA

Third Appellant

and

LORAINE CRAIG

First Respondent

LORAINE CRAIG NO

Second Respondent

LORAINE CRAIG NO

Third Respondent

LORAINE CRAIG NO

Fourth Respondent
________________________________________________________________

Neutral citation:
Minister of Safety and Security and others v Loraine Craig
(572/08) [2009] ZASCA 97 (17 September 2009)

CORAM:

Navsa, Brand, Ponnan, Mlambo and Mhlantla JJA

HEARD:

27 August 2009
DELIVERED:
17 September 2009
CORRECTED:

SUMMARY:
Delict - wellbeing of arrested persons ─ duty of police officers discussed ─
examination by district surgeon prior to detention at police station ─ cause of death
delayed rupture of descending aorta ─ in totality of circumstances police not negligent.
________________________________________________________________

______________________________________________________________
ORDER
______________________________________________________________

On appeal from:
High Court, Pietermaritzburg (Koen J sitting as court of first
instance).
1.
The appeal is upheld with costs, such costs to include the costs of two
counsel.
2.
The order of the court below is set aside and substituted as follows:
‘The plaintiffs’ claims are dismissed with costs, such costs to include the costs consequent upon
the employment of two (2) counsel.’
______________________________________________________________
JUDGMENT
______________________________________________________________

NAVSA JA (BRAND, PONNAN, MLAMBO and MHLANTLA JJA concurring):

[1] At approximately 21h00 on Saturday 19 July 2003, 34 year-old Mr Andre
Vincent Craig, who was heavily under the influence of alcohol, drove in a
southerly direction and into the face of oncoming traffic on the northbound
carriageway of the N3 national freeway. He drove his Toyota motor vehicle into
the path of an oncoming BMW motor vehicle, with disastrous consequences. The
BMW caught alight and two children within that car burnt to death. Other
passengers in the BMW were seriously injured. The collision occurred near
Hammarsdale, in the province of Kwa-Zulu Natal.

[2] Mr Craig survived the collision. He was arrested at the scene by two
members of the South African Police Service. At approximately 21h40, another
policeman, the third appellant, Detective-Inspector Musawakhe Mwandla,1
transported Mr Craig to Camperdown, to the rooms of the district surgeon,
Dr Richard Thompson, to have blood drawn for the purpose of a blood-alcohol
test.

1 Hereafter referred to as Inspector Mwandla.

[3] They arrived at Dr Thompson’s rooms at approximately 23h50. Dr
Thompson conducted an examination and blood was drawn. Tests later revealed
that Mr Craig’s blood-alcohol content was five times over the legal limit. The
official form completed by Dr Thompson at that stage noted small cuts and
bruises on Mr Craig’s body, recorded that he had a painful shoulder blade, but
stated that he was otherwise ‘well’.

[4] After the blood sample had been taken, Inspector Mwandla transported
Mr Craig to the Hammarsdale police station as he had received radio instructions
that members of the latter’s family were waiting there to attempt to secure his
release on bail.

[5] Mrs Craig’s mother, his wife Loraine and her nephew, Mr Russell Everton,
were all waiting at the Hammarsdale police station. After Mr Craig’s arrival the
family requested that he be released on bail, but this was refused. Inspector
Mwandla left the police station shortly thereafter.

[6] Mr Craig’s family then urged the police to allow them to take Mr Craig to
hospital but this too was refused. However, the police, in order to appease them,
summoned paramedics to examine him. The paramedics arrived during the early
hours of Sunday morning.

[7] There is a dispute about whether Mr Craig allowed the paramedics to
examine him. I interpose to state that there are other material disputes about: (a)
the nature and extent of the district surgeon’s examination of Mr Craig; (b)
whether he had given Inspector Mwandla specific instructions concerning further
treatment or hospitalisation; (c) the nature of the complaints made by family
members to the police concerning Mr Craig’s condition and (d) whether Mr Craig
was in obvious physical discomfort at the police station. These disputes will be
addressed in due course.

[8] According to Mrs Loraine Craig, the paramedics conducted a most cursory
examination of her husband and then pronounced that there was nothing wrong
with him. According to a paramedic and the police, Mr Craig was obstructive and
refused to be examined.

[9] A short while after the paramedics had left the police station, Mr Craig’s
family departed. At approximately 03h45 that Sunday morning, because
Hammarsdale police station had no holding facilities, Mr Craig was transported
by the police to the holding cells at Mpumalanga Police Station. At approximately
10h35 Mr Craig complained that he was feeling unwell.

[10] Inspector Mwandla was summoned and instructed to take Mr Craig to
Dr Thompson for treatment. Acting on his own initiative Inspector Mwandla
instead transported Mr Craig to Grey’s hospital. Shortly after his arrival there, and
despite the hospital staff’s best efforts to resuscitate him, Mr Craig died at
approximately 13h45.

[11] The cause of death was diagnosed as a delayed rupture of the
descending aorta. Although not a frequent occurrence, it is a well-known result of
high-impact collisions. It is necessary to describe the relevant physiology and the
nature of this injury.

[12] The aorta is the main artery that transports oxygenated blood from the
heart to the rest of the body. The descending thoracic aorta ─ as the name
suggests ─ is where the aorta turns to supply blood to the thoracic wall and then
the abdomen and the lower limbs. That part of the aorta is partially fixed. The rest
of the aorta and the heart are mobile and that is why there is a predisposition to
rupture, particularly where a person is involved in a high-impact collision. The
victim’s body stops as a result of the collision but the heart, the ascending aorta
and the aortic arch continue to move. At the point where the descending aorta

begins it is relatively immobile and has a propensity to tear. This explains how
the rupture occurred in the present case.

[13] Most of these ruptures are lethal at the scene of the collision because the
rupture is usually such that the injured person bleeds to death almost instantly. In
rare cases where this does not occur, victims experience what is referred to as a
contained rupture, which consists of a blood clot within the outer lining of the
aorta. This has a fair amount of resistance, but with the passage of time and
without surgical intervention, it ultimately gives way and death ensues. Where
there is a contained rupture there are pointers and tell-tale signs to assist in a
diagnosis.

[14] The first indicator is a high-impact collision, which would alert a medical
practitioner to the need for x-rays. A clinical examination would reveal either
unusually high or unusually low blood pressures. There will usually be blood
pressure differentials between arms and legs. Rib fractures, particularly of the
first, second or third ribs, are usually associated with this condition. These
fractures are indicative of direct significant physical trauma best detected by x-
rays. Such fractures are usually associated with a high degree of pain.

[15] In Mr Craig’s case the post-mortem examination revealed such fractures.
During the trial in the court below there was a debate about what could have
caused the fractures, including a suggestion that they might have been caused
by attempts at Grey’s hospital to resuscitate Mr Craig.  This aspect will be dealt
with later in the judgment. I shall hereafter refer to Mr Craig as the deceased.

[16] Whilst there was some expert evidence indicating that state hospitals such
as Grey’s were not geared to deal with the kind of injury sustained by the
deceased, it appears however, that one can, on the totality of the expert
evidence, accept that had the police transported the deceased to hospital shortly

after his arrival at the Hammarsdale police station, surgical intervention would in
all probability have saved his life.

[17] Towards the end of June 2006 Mrs Loraine Craig, the first respondent,
instituted action in the Pietermaritzburg High Court against the three appellants,
the Minister of Safety and Security, the Officer commanding the Hammarsdale
police station and Inspector Mwandla. Mrs Craig instituted the action both in her
personal capacity and as legal guardian of her three minor daughters, claiming
delictual damages for loss of support. In her particulars of claim she asserted that
police at the Hammarsdale police station were under a legal duty to ensure the
well-being of an arrested person, such as the deceased, and that they had
negligently breached that duty in relation to him.

[18] According to Mrs Craig the police were negligent in the following respects.
They had detained the deceased without ensuring that he had immediate
medical attention. Furthermore, they had failed to ensure that he was transported
to hospital immediately and only did so some 16 hours later. In addition, they
failed to heed complaints concerning recurring pain made by the deceased to the
officer commanding and they had ignored an instruction by Dr Thompson that the
deceased should be transported to hospital.

[19] At the commencement of the trial and after the parties had reached
agreement in this regard, the court below made an order in terms of Uniform
rule 33(4), that the trial proceed first on the question of liability, the issue of
quantum to stand over for determination at a later stage, if necessary.

[20] After hearing evidence the High Court (Koen J) gave judgment in favour of
Mrs Craig and the three appellants were held liable, jointly and severally, for such
damages as Mrs Craig and her children may prove to have suffered.

[21] It is that order, with the leave of the court below, against which the
appellants presently appeal. Before us the parties were agreed that the appeal
turns on whether the assessment of the evidence by the court below was correct.
It is thus necessary to examine more closely the findings of the court below and
to consider them against the recorded evidence and then to decide whether
intervention by this court is justified.

[22] On a crucial aspect - one in dispute - Dr Thompson testified that he had
issued an instruction that Inspector Mwandla should take the deceased to the
police station to enable his family to transport him to hospital as soon as
possible. The court below did not find Dr Thompson an impressive witness. It
held that, although Dr Thompson was not a party to the litigation, he was guilty of
a dereliction of duty in not arranging for the immediate summonsing of an
ambulance and the hospitalisation of the deceased. Koen J said the following
concerning Dr Thompson:
‘His guarded evidence in this regard made him less than a reliable witness, but it also does not
mean that his evidence must be rejected in toto.’

[23] The court below then proceeded to accept Dr Thompson’s evidence, in
preference to Inspector Mwandla’s denial that no such instruction was given by
the former. For this the court found corroboration in the telephonic report Dr
Thompson had made to Captain van Zandten, the Hammarsdale Station
Commander, on the morning of Monday 21 July 2003, as recorded in the latter’s
diary. During the telephonic discussion Dr Thompson had complained to Captain
van Zandten that Inspector Mwandla had ignored his instruction. The court below
found further corroboration in a letter authored by Dr Thompson dated 24 July
2003, which according to him he had sent to Captain van Zandten, and which
repeated the complaint.

[24] Of course, if Dr Thompson had in fact issued the instruction, as testified to
by him, and if one can conclude that it was ignored by Inspector Mwandla,
liability on the part of the appellants would unarguably ensue.

[25] In order to arrive at a decision in the present appeal, it is necessary to
consider in some detail the material parts of the evidence adduced and its
assessment by the court below, particularly in relation to the disputes referred to
in paragraph 7. I proceed to do so.

[26] First, Dr Thompson. Notwithstanding a paucity of information on the
official form that he had completed during his examination of the deceased, and
even though he recorded the deceased as being ‘well’, Dr Thompson testified
that the deceased had complained of severe pains at the back of his chest. He
had consequently instructed Inspector Mwandla to take the deceased to the
Hammarsdale police station, to enable family members to take him to hospital for
observation and that this should be done as soon as possible. Dr Thompson was
unable to explain why these instructions had not been included in the official
form. Nor, why no written referral for medical observation and, if necessary, for
treatment was directed by him to the medical staff of the hospital concerned.

[27] Dr Thompson testified that, in light of the instruction given by him, it was
likely that he would have written a letter of referral to Grey’s hospital, which
presumably would have been handed to Inspector Mwandla. He did not have a
copy of such a letter nor is it clear from his evidence that he did in fact write such
a letter. It is unclear what such a letter would have instructed or requested the
doctor in charge at Grey’s hospital to do.

[28] In a letter written to the State Attorney, more than three years after the
collision referred to above, Dr Thompson stated that, when he saw the deceased
on the night in question, the latter was in a lot of pain and possibly in ‘early
shock’. He wrote further: ‘My definite impression was that he needed to go for x-

rays and further medical assessment.’ This letter was written after the present
litigation commenced and the material impressions recorded therein do not
appear on the official form completed at the time that Dr Thompson examined the
deceased.

[29] During his testimony, Dr Thompson accepted that Inspector Mwandla is a
well-respected policeman whose word he had no cause to doubt.

[30] Under cross-examination Dr Thompson accepted that it was necessary to
complete the official form with all the accompanying details. He recalled that the
deceased had walked into his rooms unaided. He could not recall whether he
was told that the deceased had been involved in a head-on collision.
Dr Thompson failed to note the deceased’s blood pressure on the official form
and could not recall whether it had been taken by him. He testified that it was his
usual practice to note a patient’s blood pressure on the form. He also did not
record the necessary details in relation to the deceased’s pulse. Surprisingly, he
could nevertheless, more than three years after the event, recall that he had
taken the deceased’s pulse and that it had been a ‘normal strong pulse’.
Alongside the words: ‘Signs of shock’, where they appear in the official form,
Dr Thompson wrote the word ‘well’. When this was pointed out to him he
responded as follows:
‘I am trying to convey that he is a normal person who is generally fit and well.’

[31] With reference to the official form Dr Thompson accepted that he had not
identified any problems with the deceased’s heart, lungs, extremities or his
abdomen. No complaint by the deceased about pain in the chest area was
recorded on the official form. However, Dr Thompson did record that, at the time
of the examination, the deceased was strongly under the influence of alcohol and
that it was probable that, at the time of the incident, he had been under the
influence of alcohol.

[32] When Dr Thompson was asked which of his observations on the official
form would have alerted him to the need for the deceased to be hospitalised, he
replied that the pain in the shoulder area is what would have required
observation. He attempted, during cross-examination, to shift the area of concern
from the shoulder to the right-hand side chest area to tie in with what we now
know is a rupture of the descending aorta.

[33] Later, Dr Thompson was asked if he had suspected that the deceased
had sustained internal injuries. He replied that he suspected nothing other than
fractured ribs. This suspicion does not appear on the official form nor did
Dr Thompson testify that he had in fact performed a clinical examination to
detect, at the very least superficially, whether the deceased had sustained
fractures of his ribs.

[34] The doctor further testified that he had not considered it ‘absolutely
essential’ that the deceased be transported to hospital immediately. According to
him the details he supplied in the letter he wrote to the State Attorney (referred to
in para 28 above), were gleaned from the official form. This, of course, cannot be
so. Asked where he had sourced the information concerning the ‘early shock’ he
described in the letter, Dr Thompson stated that it could be accepted that he had
speculated about this.

[35] Strangely, Dr Thompson’s letter to the State Attorney records that his
instructions to Inspector Mwandla had been relayed by the deceased to
members of his family at the Hammarsdale police station. When it was put to him
that he could not have known this as he had not been present at the police
station, he replied that it could be accepted that this too was speculation on his
part. Dr Thompson was singularly unimpressive in this regard and conceded that
this part of his letter to the State Attorney was misleading.

[36] It will be recalled that the court below found corroboration for
Dr Thompson’s testimony in the telephonic report he had made to the Station
Commander, Captain van Zandten as recorded in the latter’s diary, complaining
that his instruction to Inspector Mwandla had not been followed. According to
Captain van Zandten, he had ascertained that the instruction which Dr Thompson
alleged he had issued had not been in writing. Dr Thompson, however, could not
recall that telephone conversation.

[37] A curious feature of Dr Thompson’s testimony is the letter he produced,
which he said he had sent to Captain van Zandten, complaining that the police
had ignored the instruction given to Inspector Mwandla. It will be recalled that the
court below found corroboration for his testimony in the letter he supposedly
wrote. The copy of the letter produced by Dr Thompson was not under his
letterhead and he could not recall how he had sent it. Captain van Zandten
denied receipt of the letter. However, he testified that during a subsequent visit to
Dr Thompson’s rooms, he had requested that the complaint be put in writing, but
that as far as he was concerned this request had gone unheeded.

[38] Dr Thompson could not recall that Captain van Zandten had paid him a
visit. According to Captain van Zandten, he and Dr Thompson knew each other
very well and the latter was well aware of the fact that he was the Station
Commander. The doctor’s denial that he knew that Captain van Zandten was the
Station Commander at the relevant time, even though the latter was one of his
patients, is therefore very strange.

[39] Next, I turn to consider the relevant parts of Inspector Mwandla’s
testimony and the manner in which the court below dealt with it.

[40] Koen J considered that Inspector Mwandla’s decision to transport the
deceased to Grey’s hospital, rather than to Dr Thompson’s rooms, indicated that
he must have had a prior inkling that the deceased had been unwell and that this

supported Dr Thompson’s testimony that he had expressed ‘some caveat’ to the
policeman. This, of course, ignores Inspector Mwandla’s testimony to the effect
that, in his experience, Dr Thompson was not a doctor who performed thorough
examinations and that he certainly did not dispense medication. Dr Thompson
himself confirmed that, at the relevant time, district surgeons were precluded by
the Department of Health from administering treatment.

[41] According to Inspector Mwandla, Dr Thompson’s examination of the
deceased had lasted approximately ten minutes, rather than half an hour as
testified to by the doctor. The paucity of information in the official form supports
Inspector Mwandla in this regard. Furthermore, Inspector Mwandla’s testimony
that the deceased had walked into the rooms unaided is supported by Dr
Thompson. Inspector Mwandla was adamant that he had not received the
instruction testified to by Dr Thompson. As indicated in the preceding paragraph,
the court below described the instruction as ‘some caveat’ because Dr
Thompson’s evidence mutated in this regard. He was inconsistent in his
description of his concerns about the deceased and the concomitant ‘instruction’,
particularly when he was confronted with the contents of the official form, the
letter he wrote to the State Attorney and the letter allegedly sent to Captain van
Zandten.

[42] The court below held it against Inspector Mwandla that, en route to
Mpumalanga police station to collect the deceased, he had stopped at the
Hammarsdale police station to pick up official forms, which were required to be
completed when an arrested person was to be transported to hospital. The court
below reasoned that this supported Dr Thompson’s assertion that he had issued
the instruction to Inspector Mwandla to see to it that the deceased was
transported to hospital. Koen J stated that Inspector Mwandla’s explanation that
he did this to save time had a hollow ring to it. According to the learned judge, a
further negative feature was that, instead of having the Station Commander sign
the official form, Inspector Mwandla signed it himself, indicating that the

importance of what had been communicated to him by Dr Thompson had
dawned on him and he was now taking urgent remedial steps to redress the
situation.

[43] These conclusions by the court below ignore Inspector Mwandla’s
testimony that, when he had received a radio instruction to collect the deceased
and transport him to the district surgeon, he was informed that the deceased was
experiencing chest pains and that, in the light of his experience of
Dr Thompson’s manner of examining patients and not treating them, he realised
that he would have to transport the deceased to hospital instead. The nature of
the deceased’s complaint, relayed to him, suggested that the deceased would
need to be taken to hospital and he would have had to complete the official forms
to enable him to do so.

[44] In the sequence of events referred to above, there is nothing inherently
sinister in Inspector Mwandla completing the form himself and not obtaining the
Station Commander’s signature, as was officially required. Furthermore, a
detailed examination of the record reveals that Inspector Mwandla was a much
more satisfactory witness than Dr Thompson and his testimony much more
reliable.

[45] It is necessary to record that, in the short time that Inspector Mwandla had
been in the deceased’s presence, during the time that he transported him to and
from the district surgeon and at the police station, the latter had shown no signs
of distress, nor complained. Inspector Mwandla’s testimony that the deceased
walked into the Hammarsdale police station unaided was unchallenged.

[46] After his arrival at the police station, Inspector Mwandla telephoned the
branch commander to ascertain whether the deceased should be released on
bail. He was told by the branch commander that, because people had died as a
result of the collision caused by the deceased’s intoxicated condition, he should

not be released on bail. Inspector Mwandla relayed this to Sergeant Mthembu,
who at the time was on duty at the Hammarsdale police station. Inspector
Mwandla had no communication with the deceased’s family and left the police
station shortly thereafter.

[47] I now turn to deal with the treatment by the court below of the evidence of
Inspector Mkhulise, another policeman who was at the Hammarsdale police
station at the time that the deceased was brought there. The judgment of the
court below states that Inspector Mkhulise testified that the deceased had
complained to him at least once about experiencing chest pain and that his family
had complained at least once about his condition. An examination of the record
shows that, on the contrary, Inspector Mkhulise repeatedly testified that the
deceased had never complained. When it was put to him that, according to the
first respondent, the deceased had complained that he was experiencing pain,
Inspector Mkhulise responded as follows:
‘It is untrue, he never complained of anything.’
Two lines later in the record this denial is repeated.

[48] According to Inspector Mkhulise, he had informed the deceased’s family
that bail would not be granted. They were unhappy about this and immediately
thereafter asked if they could take him to hospital, saying that he was unwell. The
deceased himself made no such complaint. Inspector Mkhulise told them that the
deceased had just come from Dr Thompson and it did not appear that there was
any need for him to go to hospital. The family repeated the request to take the
deceased to hospital. After the second request, Sergeant Mthembu asked
Inspector Mkhulise to summon paramedics to appease the family.

[49] The paramedic, Mr Boy Nkabela, arrived and Inspector Mkhulise showed
him the deceased so that he could examine him. The deceased, however,
refused to be examined by Mr Nkabela, who then left shortly thereafter.

[50] The court below, having mistakenly accepted that the deceased had
complained of chest pains to Inspector Mkhulise, reasoned that this fact, together
with the latter’s own observations, must have been the cause for him contacting
the paramedics. Continuing the reasoning on this mistaken premise, the court
below held that it would then have been highly unlikely that the deceased would
have refused to be transported to hospital.

[51] These conclusions discount the reasonable explanation given for
summoning the paramedics. It is highly likely that, given the deceased’s highly
intoxicated state, he would be unco-operative and refuse to be examined.

[52] Insofar as the paramedic, Mr Nkabela’s evidence is concerned, the court
below noted that he, like Dr Thompson, might potentially be exposed to a claim
for damages. The court found it unlikely that Mr Nkabela could reliably recall
incidents that occurred several years before. Koen J held it against Mr Nkabela
that, whilst he was sketchy on details, he was nevertheless able to recall who his
partner had been on the morning in question. The court below did however, find
corroboration for his evidence that the deceased was unco-operative and
argumentative, in the evidence of Dr Laubscher who had attended to the
deceased upon his arrival at Grey’s hospital, and had found him in an agitated
and aggressive state.

[53] Insofar as the testimony of Mr Everton and Mrs Craig is concerned, the
court below rightly found that they had cause to, and did, exaggerate and over-
dramatise events. Both testified that the deceased was in constant and obvious
excruciating pain. According to Mrs Craig, the deceased had vomited blood in a
toilet at the police station. She testified that the paramedics had conducted the
most cursory examination of the deceased, informed them that there was nothing
wrong with him and then departed. She could not explain why she had not told
the paramedics that her husband had vomited blood, an important indication that
something was amiss.

[54] There is force in the submission on behalf of the appellants that, had the
deceased been in obvious excruciating pain which raised his family’s concerns,
they would all have been intent on ensuring that he was properly examined by
Mr Nkabela, the paramedic, and would have described in as much detail as
possible the symptoms they had witnessed. Furthermore, all the family members
would have ensured they were in attendance to see to it that the deceased
received the necessary attention. Inexplicably, Mr Everton stood outside smoking
whilst Mr Nkabela attempted to tend to the deceased.

[55] Inspector Emmanuel Zungu, who was also at the Hammarsdale police
station on the night in question, corroborated in broad terms the evidence of
Inspector Mkhulise and Mr Nkabela.

[56] There was expert medical evidence that the deceased’s level of
intoxication could very well have masked the pain usually attendant on the kind
of injury he had sustained.

[57] The pre-trial conference minute recorded that the parties were agreed that
all the injuries noted as a result of the post-mortem examination were sustained
as a result of the collision. That notwithstanding, counsel explored whether the
fractures of the ribs could have been caused by efforts to resuscitate the
deceased at Grey’s hospital. The medical evidence was that, as regards the
fractures that would have been an indicator of the injury that caused the
deceased’s death, namely fractures of the second, third and fourth ribs
(posteriorly), the likelihood was that they were caused by the collision

Conclusions

[58] Although courts of appeal are slow to disturb findings of credibility, they
generally have greater liberty to do so where a finding of fact does not essentially

depend on the personal impression made by a witness’ demeanour, but
predominantly upon inferences and other facts and upon probabilities. In such a
case a court of appeal with the benefit of a full record may often be in a better
position to draw inferences.2

[59] In the present case, as demonstrated above, the credibility findings are
not borne out by the record. The reasoning of the court below in relation to the
probabilities, is at times, based on incorrect facts and is flawed in the respects
referred to above.

[60] In Mtati v Minister of Justice 1958 (1) SA 221 (A), this court (at 224)
emphasised the duty of officials who have prisoners in their charge to see to their
well-being. Courts should obviously be vigilant to ensure that officials who have
in their charge those whose freedom of movement has been restricted, comply
with the obligation to ensure their well-being.

[61] In Minister of Police v Skosana 1977 (1) SA 31 (A), the policemen in
question were negligent in not ensuring treatment expeditiously for an arrested
person who had been drunk and had started showing obvious signs of pain after
he had sobered up, and who had complained to the police about his condition.
There was a further delay after an instruction by a medical doctor that he be
taken to hospital immediately. The doctor concerned had written a note to the
doctor in charge of the hospital and had handed it to a policeman. Police
standing orders place an obligation on members of the police to whom it appears
that detainees are in distress and are therefore injured or ill to obtain the
necessary medical assistance for them. The police in Skosana were found to be
negligent and the Minister was consequently held liable.

2 Union Spinning Mills (Pty) Ltd v Paltex Dye House (Pty) Ltd & another 2002 (4) SA 408 (SCA)
para 24 and Louwrens v Oldwage 2006 (2) SA 161 (SCA) para 14.

[62] The well-known test for negligence is set out in Kruger v Coetzee 1966 (2)
SA 428 (A) at 430:
‘For the purposes of liability culpa arises if ─
(a)
a diligens paterfamilias in the position of the defendant ─

(i)
would foresee the reasonable possibility of his conduct injuring another in his

person or property and causing him patrimonial loss; and

(ii)
would take reasonable steps to guard against such occurrence; and
(b)
the defendant failed to take such steps.’

[63] The primary question in the present case is whether the court below was
correct in its conclusion that Dr Thompson had issued the instruction referred to
above and that the police had been negligent in ignoring it.

[64] In my view the court below was manifestly wrong in accepting the
evidence of Dr Thompson. He made the verbal report relied on by the court
below to Captain van Zandten after the deceased’s death was reported in the
media and was common knowledge in Camperdown, and after it must have
become known to him at least that there was a concern about culpability.

[65] The court below was correct to initially approach his evidence with caution
but erred in relaxing that reservation.

[66] Dr Thompson’s apparent subsequent concern about the deceased’s
condition is not borne out by the notes he made on the official form. The form
actually evidences the contrary. It notes that, save for the pain in the shoulder
blade, the deceased was otherwise ‘well’. In my view this supports the conclusion
that there was no referral letter. If there had been one I can think of no reason
why Inspector Mwandla, whom everyone ─ Dr Thompson included ─ regarded as
a dutiful policeman, would ignore it.

[67] Dr Thompson was clearly not candid concerning his knowledge of who the
Hammarsdale Station Commander was. The difficulties he had in explaining the

source of the information contained in his letter to the State attorney directly
affects his credibility. The unsatisfactory aspects in relation to the letter that he
claims he sent to Captain van Zandten, referred to above, strongly suggest that
his testimony in this regard was contrived.

[68] In light of its conclusion that Dr Thompson issued the instruction and that it
was ignored, the court below did not deem it necessary to consider the conduct
of other policemen during relevant times.

[69] As demonstrated above, the court below was right not to place reliance on
the evidence of Mrs Craig and Mr Everton. I can see no reason to disbelieve the
police version of events. If their version is accepted, the following picture
emerges. The deceased had been seen by the district surgeon who had
identified no medical problem that required further medical attention. The
deceased walked unaided and had no ostensible signs of significant injury. At the
Hammarsdale police station the deceased did not complain that he was unwell
and did not show any obvious signs of distress. The deceased’s family members
requested that they be allowed to take him to hospital only after bail had been
refused. When a second request was made Sergeant Mthembu issued an
instruction that paramedics be summoned. Mr Craig refused to be examined.
When the deceased himself complained at the Mpumalanga police station that
he was unwell, that fact was noted and Inspector Mwandla summoned. There is
no indication that the latter delayed unduly and that he did not transport Mr Craig
to Grey’s hospital expeditiously. In light of what is set out above it can hardly be
said of the police that they were negligent.

[70] I am aware of the plight of the deceased’s wife and daughters. They have
lost a breadwinner and appear to be without means. If, of course, the police had
behaved negligently and wrongfully, they should be held to account. On the other
hand, good policemen who behave properly and execute their duties

conscientiously and often under trying circumstances, are entitled to have their
reputations kept intact and should not be saddled with liability unjustifiably.

[71] For all the reasons set out above the following order is made:
1.
The appeal is upheld with costs, such costs to include the costs of two
counsel.
2.
The order of the court below is set aside and substituted as follows:
‘The plaintiffs’ claims are dismissed with costs, such costs to include the costs consequent upon
the employment of two (2) counsel.’

_________________
M S NAVSA
JUDGE OF APPEAL

APPEARANCES:

For Appellant:
R Seegobin SC

T S I Mthembu

Instructed by

State Attorney Durban

State Attorney Bloemfontein

For Respondent:
J Marais SC

V M Naidoo

Instructed by

Chetty Asmall and Maharaj Pietermaritzburg

Webbers Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
17 September 2009
Status:
Immediate
Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court of
Appeal

On 17 September 2009 the Supreme Court of Appeal handed down judgment in The
Minister of Safety and Security and others v Loraine Craig, upholding an appeal
against a decision of the Pietermaritzburg High Court. The SCA held that the police
were not liable to pay damages to the widow of a person who had died whilst in
police custody.

At approximately 21h00 on Saturday 19 July 2003 Mr Andre Craig was involved in a
head-on collision which caused the death of two children. At that time he was heavily
under the influence of alcohol ─ more than five times over the legal limit. He was
arrested and taken to the rooms of the district surgeon to have blood drawn for the
purposes of a blood-alcohol test. The district surgeon conducted an examination and
blood was drawn. According to the district surgeon he had issued instructions that
Mr Craig be taken to hospital to be monitored. According to the police such an
instruction was not issued.

After the visit to the district surgeon Mr Craig was transported to the Hammarsdale
police station where members of his family awaited. They sought to obtain bail but
this was refused. According to members of his family Mr Craig was in obvious and

excruciating pain. According to the police Mr Craig had shown no signs of discomfort
and had not complained. It was common cause that paramedics were summoned in
response to the family’s request that they be allowed to transport Mr Craig to
hospital. According to a paramedic and the police Mr Craig was obstructive and
refused to be examined. According to Mr Craig’s wife the paramedic conducted a
cursory examination and then pronounced that there was nothing wrong with him.

During the early hours of Sunday morning, because the Hammarsdale police station
did not have holding facilities, Mr Craig was transported to the Mpumalanga police
station. At 10h35 he complained that he was feeling unwell. He was transported to
Grey’s hospital, where, shortly after his arrival he died despite the hospital staff’s
best efforts to resuscitate him.

The cause of Mr Craig’s death was diagnosed as a delayed rupture of the
descending aorta. Although not a frequent occurrence, it is a well-known result of
high-impact collisions. Most of these ruptures are lethal at the scene of the collision
because the rupture is usually such that the injured person bleeds to death almost
instantly. In rare cases where this does not occur, victims experience what is
referred to as a contained rupture, which consists of a blood clot within the outer
lining of the aorta. This has a fair amount of resistance, but with the passage of time
and without surgical intervention, it ultimately gives way and death ensues. Where
there is a contained rupture there are pointers and tell-tale signs to assist in a clinical
diagnosis.

As a result of Mr Craig’s death the respondent, Mrs Loraine Craig, instituted an
action for damages in her personal capacity and in her representative capacity as
the legal guardian of her three minor daughters, against the Minister of Safety and
Security, the Charge Office Commander of the Hammarsdale police station and
Detective Inspector Musawakhe Mwandla, the policeman who had transported
Mr Craig to the district surgeon and to Grey’s hospital.

The Pietermaritzburg High Court accepted the district surgeon’s version, namely,
that he had issued the instruction to Inspector Mwandla to transport Mr Craig to
Grey’s Hospital and that it had been ignored. Consequently the high court held the

three appellants liable, jointly and severally for such damages as Mrs Craig and her
children may prove to have suffered.

The SCA held that on the record of evidence it was apparent that the district surgeon
had conducted a cursory examination. The SCA had regard to the official form
completed by the district surgeon which noted that although Mr Craig complained of
shoulder pain he was well. The SCA held that the high court had erred in accepting
the district surgeon’s evidence that he had issued the instruction to Inspector
Mwandla. The record of evidence revealed several unsatisfactory aspects of his
testimony and the SCA found that Inspector Mwandla was a much more satisfactory
witness.

The SCA held that the record provided no basis on which to reject the police version
of events, from which the following picture emerged:  The deceased had been seen
by the district surgeon who had identified no medical problem that required further
medical attention. The deceased walked unaided and had no ostensible signs of
significant injury. At the Hammarsdale police station the deceased did not complain
that he was unwell and did not show any obvious signs of distress. The deceased’s
family members requested that they be allowed to take him to hospital only after bail
had been refused. When a second request was made Sergeant Mthembu issued an
instruction that paramedics be summoned. Mr Craig refused to be examined. When
the deceased himself complained at the Mpumalanga police station that he was
unwell, that fact was noted and Inspector Mwandla summoned. There is no
indication that the latter delayed unduly and that he did not transport Mr Craig to
Grey’s hospital expeditiously.

This court reiterated that police have a duty to ensure the well-being of arrested
persons. However, in the light of the aforegoing, it could not be said that the police
were negligent. The court appreciated the plight of the deceased’s widow and
children. If the police had acted negligently and wrongfully they should be held to
account. On the other hand, good policemen who behave properly and execute their
duties conscientiously and often under trying circumstances, are entitled to have
their reputations kept intact and should not be saddled with liability unjustifiably.

The appeal was upheld with costs.