ENGELBRECHT v MINISTER OF PRISONS AND CORRECTIONAL SERVICES (NOTE: This case is reported)
Citation: 2000 NR 230 (HC)
Court: High Court
Case No: 2000 NR 230 (HC)
Judge: Manyarara AJ
Judgment Date: November 17, 2000
Counsel:
J Miller for the plaintiff. M Asino (attorney) for the defendant.
Judgment
Manyarara AJ: On 26 March 1998 plaintiff issued summons in terms of which he claimed from defendant the payment of damages for injurious treatment, infringing his rights to personal safety and dignity. The particulars of claim alleged that on 25 November 1997 prison officials at Windhoek Central Prison put leg irons or chains on plaintiff, contrary to the provisions of art 8 of the Namibian Constitution. The plaintiff was an awaiting trial prisoner. The chains were removed on 11 December 1997, following plaintiff's acquittal by a regional court on all charges pending against him.
Defendant admitted the placing of chains on plaintiff but, inexplicably, denied any knowledge of the date on which the chains were removed. However, Mr R Malabo, the prison head, came and confirmed that the irons were removed on 11 December 1997 as alleged. Save as aforesaid, defendant's plea was a bare denial of all the particulars of plaintiff's claim.
Mr Asino appeared for defendant. He disputed defendant's liability on the main ground that the prison staff acted lawfully in terms of the Prisons Act of 1959 (since repealed). According to him, the Act was still in force and it authorised placing a prisoner in chains in enumerated circumstances.
Namunjepo and Others v The Commanding Officer, Windhoek Prison and Another 1999 NR 271 (SC) is directly in point. This was an appeal relating to five awaiting trial prisoners who applied for an order for removal of the chains put on them and a declaration that the practice was unconstitutional. Four of the applicants had been chained on their recapture after escaping from prison. The fifth applicant was put in chains on an allegation that he had attempted to escape.
Strydom CJ delivered the judgment of the Supreme Court, which reads in part as follows:
'Article 8 of the Constitution provides that - ''(1) The dignity of all persons shall be inviolable. (2)(a) In any judicial proceedings or in other proceedings before any organ of the State, and during any enforcement of a penalty, respect for human dignity shall be guaranteed. (b) No persons shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.'' '
The learned Chief Justice quoted with approval the reasoning of Mahomed AJA (as he then was) in Ex parte Attorney-General, Namibia: In re Corporal Punishment by Organs of State 1991 NR 178 (SC); 1991 (3) SA 76 (NmS) and continued as follows:
'Furthermore, the learned Judge stated that no derogation from the rights entrenched by art 8 (is) permitted and that the State's obligation was absolute and unqualified. All that is therefore required to establish a violation of art 8 is a finding that the particular statute or practice authorised or regulated by a State organ falls within one or other of the seven permutations of art 8(2)(b) set out above; ''no questions of justification can even arise''. (Sieghart The International Law of Human Rights at 161 para 14.3.3) p 86D - E.)'
(At p 9 of the cyclostyled copy of the judgment.) (The seven permutations of art 8(2)(b) referred to are: torture, cruel treatment, cruel punishment, inhuman treatment, inhuman punishment, degrading treatment and degrading punishment.)
On such reasoning, the Supreme Court held that the placing of a prisoner in leg-irons or chains is an impermissible invasion of art 8(1) and contrary to art 8(2)(b) of the Constitution as it at least constitutes degrading treatment, and, the Court declared the practice unconstitutional. The Court further stated that it found it unnecessary to make any declaration regarding the Prisons Act 8 of 1959 (or reg 102 made thereunder) as the Act had been repealed.
I considered myself bound by the decision and I agreed with the interpretation given to the decision by Mr Miller for plaintiff as follows:
'. . . What the Supreme Court found was not only that the act was in contravention of the Constitution. It in effect found that the practice of placing prisoners in chains is contrary to the Constitution in as much as the practice of doing so amounts to cruel and inhuman treatment. It does not matter when that was. It will, by a decree of the Supreme Court, have been a cruel and inhuman practice whenever it was practised after the commencement of the Constitution (in 1990). The fact that there was an act (which had permitted the practice which was subsequently declared unconstitutional takes the matter neither here nor there. The effect of the judgment is that - to place a prisoner in chains is prohibited by the Constitution) as cruel and inhuman treatment or punishment.'
(Emphasis added.)
Mr Asino had a second defence against plaintiff's claim. He submitted that it is the plaintiff himself who caused the officials to put him in chains to prevent him from attacking and otherwise offering violence to the prison staff. Plaintiff had struck a prison officer with an iron bar, causing injury which required hospital treatment. He knew or must have known that if he acted violently, or attacked or assaulted prison officials, he would be 'placed in a single cell and/or leg irons'. If I understood Mr Asino correctly, he was asking me to apply the maxim volenti non fit injuria and absolve defendant from liability.
The maxim is well known. It means that 'he who, knowing and realising a danger, voluntarily undertakes to undergo it, has only himself to blame for the consequences'. Claasen Dictionary of Legal Words and Phrases (Butterworths 1977) vol 4.
However, the text continues: '. . . in order to render the maxim applicable it must be clearly shown that the risk was known, that it was realised, and that it was voluntarily undertaken . . . Knowledge, appreciation, consent - these are the essential elements; but knowledge does not invariably imply appreciation, and both together are not necessarily equivalent to consent.' The onus rests on defendant to prove the essential elements for the maxim to apply.
Plaintiff's evidence is as follows:
'I told Superintendent Oberholzer that it is against the Constitution and I refused (to be put in chains) and I did nothing wrong. . . . Then I stand back, then I took this fingerprint pad to ward him off this attempt, this infringement of my constitutional right . . . Superintendent Oberholzer put on the chains and actually I told him that I will take the issue further. Because it is unconstitutional. So he was quite aware at that stage what it is. Thereafter, they grab me, already chained and took me to the single cell in F-section . . . for convicted prisoners and I was the only awaiting trial detainee at that stage. . . .'
This evidence went unchallenged. Therefore, defendant did not even begin to discharge the onus resting on it of proving that plaintiff knew, realised and voluntarily undertook the risk of being put in chains if he behaved violently. Plaintiff stated unambiguously that he believed that it was proper for him to resist and, if possible, prevent what the prison officials were doing to him. He says he made this clear to the prison staff and vowed to pursue the matter further, which he has done. In my view, volenti non fit injuria did not even arise for consideration at this stage. Accordingly, I found defendant liable as alleged and, after hearing verbal argument on quantum, I adjourned the trial for a fortnight for counsel to submit written supplementary heads on the issue.
Counsel have referred me to several authorities, which will be considered. I have also perused Whittaker v Roos and Bateman 1912 AD 92 which was not referred to by counsel but is among the cases quoted in Fose v Minister of Safety and Security 1997 (3) SA 786 (CC), which Mr Asino cited. It was an appeal from the decision of the Transvaal Provisional Division in an action for damages in circumstances not dissimilar to the present circumstances. The appellant, while awaiting trial, had been kept in solitary confinement and, inter alia, prevented from exercising himself properly, or smoking, or receiving any reading material or visitors, or seeing his lawyer. At his trial about three months later, he was acquitted. In upholding the Provincial Division's finding that the State was liable for the harm suffered by plaintiff, the Appellate Division also multiplied tenfold the damages awarded by the court below. Lord De Villiers CJ enunciated the following principle at 118:
'By all means let the authorities use all their efforts to put criminals and suspected criminals under lock and key, but when once they have done this let them remember that punishment should only begin when the guilt of the prisoners has been established by judgment of a court of law . . . and, where a case is clearly made out of harsh and illegal treatment (of an awaiting trial prisoner by the prison authorities), followed by his acquittal of the offence laid to his charge, it becomes the bounden duty of the Court, which is called upon to assess the damages sustained by him to award damages commensurate with the degree of indignity, hardship and disgrace to which he has been subjected.'
In my view, the case is directly in point but distinguishable from the present matter in that the plaintiff in that case was described as 'a perfectly well-behaved prisoner' who 'gave no trouble of any kind. He did not even make complaints about his treatment, and yet he was punished as if he had been a hardened offender.' (At 114.)
The same can hardly be said of the plaintiff in the present matter. In this regard, Mr Malabo testified as follows:
'The day I entered the Windhoek Central Prison they were having a problem with him. . . . Secondly . . . he was b