SUPREME COURT OF APPEAL, SOUTH AFRICA

MEDIA SUMMARY - JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM
The Registrar, Supreme Court of Appeal

DATE
1 June 2018

STATUS
Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment of the Supreme Court of Appeal.

Earl Flanagan v Minister of Safety and Security (497/2017) [2018] ZASCA 96 (1 June
2018)

Today, the Supreme Court of Appeal (SCA) upheld an appeal brought by the appellant, Mr
Earl Flanagan, against a judgment of the Eastern Cape Local Division of the High Court,
Port Elizabeth. The issue on appeal concerned the question whether the Minister of Safety
and Security (now Police) is liable for damages suffered by the appellant when he was
sodomised in police custody.
The appellant was arrested in the early hours of Saturday, 10 October 2012, for drunken
driving and related charges. The investigating officer recommended that he should be
released on bail in terms of s 59(1) of the Criminal Procedure Act 51 of 1977. He was not
released because of communication breakdown between the police station where he was
charged, and the one where he was detained for the rest of the weekend. In the early hours
of Monday, 12 October 2009, he was sodomised by a group of inmates. His claim against
the Minister for damages was dismissed by the High Court on two bases. First, that the
assault on him was not reasonably foreseeable, and second, that his evidence that he had
alerted the police of possible harm to him, was not credible.
On appeal, the Supreme Court of Appeal found that in addition to the failure by the police to
release the appellant on bail as recommended by the investigating officer, the police had
also failed to detain the appellant separately from detainees charged with violent crimes.
This was in violation of the police’s Standing Order, which provides that whenever
reasonably possible, persons in custody who are alleged to have committed violent crimes,

must be detained separately from other persons in custody. This, the Court found, was
negligent on the part of the police.

The Court accordingly found that, failure to grant bail in the circumstances where the
appellant was entitled to be released, cumulatively considered with the failure of the police to
detain the appellant separately from persons who had been arrested for violent crimes, gives
rise to delictual liability on the part of the Minister for the police’s conduct.
In the circumstances, the Court (per Makgoka AJA with Lewis, Seriti and Saldulker JJA and
Schippers AJA concurring) upheld the appeal with costs, including costs of two counsel.