To: The Inspecting Judge of Prisons and/or his delegate(s) JJ Fagan
Re: Unnatural deaths and injuries at Pollsmoor Admission Centre on 23 August 2004

1. Legislative Mandate
Section 15 of the Correctional Services Act 111 of 1998 ("the-Act").empowers the Inspecting Judge of Prisons to, inter alia, conduct any enquiry into any death in prison. On 23 August 2004 three prisoners died and three were injured whilst locked up in their cells as a result of fires that occurred. The circumstances surrounding their deaths and injuries were the subject of an enquiry by the Department of Correctional Services. This report evaluates the investigation report, the evidence gathered and the conclusions reached.

It is common cause that prisoners who are incarcerated have the right to be kept in safe custody, the duty being statutorily codified in s4(2)(a) of Act 111 of 1998. The sub-section provides that:

"The Department must take such steps as are necessary to ensure the safe custody of every prisoner and to maintain security and good order in every prison"

Further the Act, in part C, entitled "Security" provides that in its obligation of providing the objective of safe custody, security of the community, the safety of correctional officials and the safe custody of all prisoners a correctional official may:

s26(2)(a) "search the person of a prisoner, his/her property and the place where he or she is in custody and seize any object or substance which may pose a threat to the security of the prison or of any person, or which could be used as evidence in a criminal trial or disciplinary proceedings "

The Act provides for various other options to be exercised by correctional officials in particular circumstances. Reference to these will be made, where applicable, and includes the segregation - s30(1)(d) of the Act - of prisoners who pose a threat to security and safe custody.

This report focuses on whether any act or failure to act, on the part of the Department of Correctional Services and/or its employees, attracts liability when viewed against the statutory obligations. In this regard the general principles of delict will be referred to, where necessary.

2. Court judgments on the test for wrongfulness -the common law

The appropriate test for determining the wrongfulness of omissions in delictual actions for damages in our law has been settled in a number of decisions of our Courts such as Minister van Polisie v Ewels 1975(3)
SA 590 (A) at 597 A-C; Minister of Law and Order v Kadir 1995(1) SA 303 (A) at 317 C-318 I; Knop v Johannesburg City Council 1995(2) SA I (A) at 27 G-l and Government of the Republic of South Africa v
Basdeo and Another 1996(1) 355 (A) at 367 E-H.

The existence of the legal duty to avoid or prevent loss is a conclusion of law depending upon a consideration of all the circumstances of each particular case and on the interplay of many factors which have to be considered. The issue, in essence, is one of reasonableness, determined with reference to the legal perceptions of the community as assessed by the Court. In Minister of Law and Order v Kadir, supra, Hefer JA, stated the nature of the enquiry thus at 318 E-H :

"As the judgments in the cases referred to earlier demonstrate, conclusions as to the existence of a
legal duty in cases for which there is no precedent entail policy decisions and value judgments which
'shape and, at times, refashion the common law [and] must reflect the wishes, often unspoken, and the
perceptions, often dimly discerned, of the people' (per M M Corbett in a lecture reported sub nom
'Aspects of the Role of Policy in the Evolution of the Common Law' in (1987) SALJ 52 at 67). What
is in effect required is that, not merely the interests of the parties inter se, but also the conflicting interests
of the community, be carefully weighed and that a balance be struck in accordance with what the court
conceives to be society's notions of what justice demands."

Hefer JA also stressed the difference between morally reprehensible and legally actionable omissions and warned that a legal duty is not determined by the mere recognition of social attitudes and public and
legal policy (at 320 A-B). The question must always be whether the defendant ought reasonably and practically to have prevented harm to the plaintiff: in other words, is it reasonable to expect of the defendant to have taken positive measures to prevent the harm (Prof J C van der Walt in Lawsa, First Reissue, Vol 8, Part I para 56) [This passage is quoted from the Constitutional Court judgment in Carmichele v Minister of Safety and Justice]. The facts in this particular case will 1: evaluated according to the statutory prescriptions and court judgments.

3. The salient facts in this case
The investigation report consists of no fewer than fifty three(53) annexures, the majority of them comprising of witness statements. Many of the statements are irrelevant to the central issues; v.i.z,

# Were the deaths and injuries a result of any wrongful act or omission on the part of the Department of Correctional Services, its officials and/or prisoners?
# Were any of the parties negligent? ; should they have reasonably forseen the harm and were reasonable steps taken to prevent the harm?

The report covers a period of two days, 22 August 2004 and 23 August 2004. On the latter day three(3) single cells with prisoners in them were set alight. The deceased prisoners - Pietersen, Sibidla and Motomi (alias Nethi) were detained at the relevant time in cell 227 whilst the injured prisoners - Skink, Samuels and Ntolongo were detained in cell 235. These prisoners were detained in these cells at different times on 22 and 23 August 2004, having been moved there on the instructions of or by official Malgas. The third cell, number 230 is not dealt with in this report, same being subject to a separate enquiry as indicated by the report. The evidence of prisoner Therlo Norris (Annexure Q) indicates that, on 22 August 2004 at 14H00, prisoner Norris set his mattress alight which official "Chief Gym" intervened. This matter will be dealt with later in this report.

The fire, prisoners detained and circumstances in cell 227 will be looked in detail as it is the one in which the prisoners died.

Cell 227 on 23 August 2004
Cell 227 is a single cell, used for segregated prisoners for one or more of the reasons set out in s30 of the Act. This cell accommodated the deceased prisoners, v.i.z; Pietersen, Sibidia and Motomi (alias Nethi). They had previously occupied communal cells. In the case of Motomi (alias Nethi) the reason for his segregation was to comply with the policy of placing one(l) or three(3) prisoners in single cells, ostensibly for the purposes of security. In the case of Pietersen and Sibidia, the former was segregated consequent to him
threatening violence to correctional officials, including the sections unit manager, Mr Malgas and in the case of Sibidia as a suspect in an assault perpetrated on fellow prisoner, namely Orderson on the previous day, 22 Angus 2004. Their segregations were ordered by Mr Malgas.

The weekly duty list (Annexure B) indicates that 8 correctional officials were allocated to section D2. The evidence further indicates that the Head of Prison, Mr Scholtz, was on duty on 23 August 2005. The report does not provide an indication as to the number of prisoners detained in that section. The floor plan
(Annexure E) provides a schematic layout of the section and it appears that area does not cover a large area with no obstructions in the passage between the cells

It is common cause that the events of the preceding day, 22 August 2004, when prisoner Orderson was assaulted by fellow prisoners and the resulted segregation of various suspects simmered throughout that day and continued on 23 August 2004. Various of the group who were segregated communicated with various officials throughout the day - an atmosphere of tension and threat, e.g. Trevor Pietersen saving "Vandag gaan daar kak wees".

Statements by the prisoners
At this stage I turn the statements by various prisoners commencing with the suicide note written by deceased prisoner, Christopher Sibidla. His note was written in isiXhosa and translated it read (in its entirety) - (Annxures C and P)

"Brother la 209, Brother I am going to kill myself with fire. Mr Malgas is ill trating me. I am sorry Mum and (D)ad (sic). Mr Malgas knows that. By Xolile"

The statement by prisoner Lawrence Mawetu Cwenxa (Annexure GG), confirms the following:
# On 23 August 2004 he was incarcerated in cell 226, adjacent to cell 227 and approximately between 15H25 and 15H35 he heard a conversation between the deceased Sibila and prisoner Siyabulela Khobo, the latter in cell 213, directly opposite cell 227.
# The conversation was along the lines that they (prisoners in cell 227) were going to immediately set their cell alight - but first he was going to hand a letter to Siyabulela.
# He saw prisoner Alfred Tulo and heard a conversation between Tulo and Sibidla in which the former tried to convince Sibidla not to carry out their threat ~ he would speak to the members.
# He spoke to Mr Ntitile who then conversed with Khobo. He saw Mr Ntitile move toward the office. It appears from the sketch plan that the office is in close proximity to the cells.
# Shortly afterwards he he saw smoke in his cell and left his cell .

The statement by prisoner Sikhiwo Sigwinja (Annexure HH) - avers that:
# On 23 August 2004 whilst chatting with prisoner Siyabulelo prisoner Alfred Tulo arrived who he observed chatting with prisoner Siyabulelo.
# He observed a piece of paper being thrown out of cell 227 toward cell 213.
# Tulo picked up the paper and read the note in official Ntitile's presence. His request to Mr Ntitile to open the cell was not acceded to. He saw Mr Ntitile walk to his office.
# He then smelt smoke.

Statement by prisoners Balintulo (Annexure II), Khobo (Annexure JJ), Ahmed (Annexure MM), Tulo (00) all confirm in material respects that, at least officals Ntitile and Benn were aware an/or ought to have been aware of the intentions of Sibidia. They singularly and/or collectively - at the time of the final count did not either open cell 227 nor alert the unit manager Mr Malgas of their knowledge of Sibidla's intentions.

The statement by prisoner Orderson (Annexure BB, bottom of page 2) - assaulted on the previous day and accused of being favoured by officals, in particular Mr Malgas, as well as of being the perpertrator of sexual assaults on fellow prisoners confirms that a fire was threatened by deceased prisoner, Trevor
Pietersen. His evidence, inter alia, is:
# On 23 August 2004 he requested, and was allowed by official Mr Ntintile, to move from his section to D2 to fetch cigarettes from prisoner Patrick Pypers. At the time prisoners were being counted.
# He, prisoner Andre Kriegling and officals Messrs Ntitintile and Van Wyk were the only ones in the passage. He observed Kriegling being given a letter to hand to the officials. Kriegling handed the letter to official Van Wyk who advised him (Van Wyk) to read it as Trevor Pietersen was talking about setting the place on fire.
# Offical Van Wyk, who was busy counting, pushed the letter aside.
# At about the same time Orderson noticed smoke coming from cell 227.

The statement by prisoner, Lawrence Williams (Annexure CC) confirms three key issues, namely:
# Trevor Pietersen, on 22 August 2004 at approximately 12H40 said, in his presence, to Mr Malgas-
".. .hy vat net kak aan en ek gaan vir jou wys wat ek gaan doen "
# He corroborates the fact that on 22 August 2004 that prisoner Rossi set his cell alight.
# He corroborates Orderson's evidence of the letter by Pietersen handed to Kriegling.

The statement by prisoner, Andre John Kriegling (Annexure DD) provides further corroboration/confirmation to the previous statements, namely:
# He received a letter from Pietersen. He advised official Benn that Orderson was in possession of the letter.

Statements by the Correctional officials

Statement by official Benjamin Summers (Aimexure QQ) -
# Does not mention at all the circumstances surrounding the fire.
# His statement brief mentioning only the events on 22 August 2004. The weekly duty sheet indicates that Summers was allocated duty for the period 22 August 2004 to 27 August 2004.

Statement by Head of Prison Daniel Scholtz (Annexure SS) - avers:
# On 22 August 2004 he was on duty and was aware of the assault on Orderson.
# He gave the order to segregate the inmates.
# He relied on Orderson's representations to be detained in D2 despite his reluctance and despite Orderson advising him that the fight was gang related.
# He was aware that prisoner Rossi set his cell alight.
# At 15H30 on 23 August 2004 he became aware of a cell in D2 was set alight.
# He then acted together with fellow officials and members in dousing the fire.
# He confirms that official Malgas was not on duty in the afternoon of 23 August 2004. This it appears was without his consult nor was Malgas replaced.

Statement by official Trevor Dawid Marree (annexure UXJ) -
# He confirms the version of many prisoners that colleague Malgas's relationship with Orderson was wrong - he ignoring Orderson's activities despite many reports.

The balance of the statements, in my view, does not address, the versions of the prisoners regarding the threats made on 22 August 2004 as well as the continuation on 23 August 2004. My view is that the investigation is materially deficient, the investigators not questioning the officials on why they did not take
precautions, act swiftly on Sibidla's suicide note etc. I draw the inference that Deputy Regional Commissioner's opinion in paragraph 11.1 alludes to this when he avers that "certain" statements deliberately intend to mislead the reader.."

4. The conclusions reached by the Department of Correctional Services
The Department's findings and conclusions are that the prisoners are responsible for their own deaths and injuries — the so-called volenti principle — by their own actions they voluntarily assumed the risk of their actions or consented to their deaths and injuries. I respectfully, on the papers, disagree for the following reasons.

4.1. On 22 August 2004 cell 230 was set alight.
4.2. The situation was tense - threats were made by deceased Trevor Pietersen of violence and of arson.
4.3. The tension had not eased on 23 August 2004.
4.4. It was, at least, in the knowledge of officals Malgas, Ntitile, Benn and Van Wyk that the arson perpetrated on 22 August 2004 was again strongly possible on 23 August 2004.
4.5. No evidence of a security and contingent plan in section D2 is provided when the circumstances warranted it.
4.6. The officials failed to, on 23 August 2004, deal with Sibidla's threat as advised by prisoners to open the cell and investigate the threat.
4.7. The officials were expected to at least have conducted a search of the cells for flammable items, matches, lighters etc. No evidence of this is apparent. The segregated prisoners were simply left in their cells and ignored.

I am particularly intrigued by the comment (without expansion) by the Deputy Regional Commissioner's opinion in paragraph 11.1 that certain statements "deliberately intend to mislead the reader not to come to a logical conclusion of the most probable happening of the events". This requires explanation.

5. Conclusion
I recommend in conclusion:

5.1 That this office conducts an independent investigation, and/o
5.2 That this office leads evidence at the inquest in this matter.

UMESH RAGA
LEGAL SERVICES
9 MAY 2005