THE EMERGENCE OF A “FLEXIBLE” CONDITIO SINE QUA NON TEST TO FACTUAL CAUSATION? Lee v Minister of Correctional Services 2013 (2) SA 144 (CC)

Abstract

For many years the factual causation inquiry has remained relatively uncontentious as the determination of a factual nexus has not posed many problems for the courts. The courts establish a factual nexus on the evidence and probabilities of each case and employ the well-known conditio sine qua non test to affirm their findings on factual causation (we use the terms conditio sine qua non test and “but for” test interchangeably). However, in a recent judgment of the Constitutional Court, Lee v Minister of Correctional Services (2013 (2) SA 144 (CC)), the Court was tasked to determine a factual nexus in a multifaceted set of circumstances which challenged the traditional application of the conditio sine qua non test. Specifically, the Court had to determine the existence of a factual nexus between a systemic state omission in protecting prisoners from contracting pulmonary tuberculosis (TB) and the subsequent harm that ensued. In response to this scenario, the Court articulated a so-called “flexible” conditio sine qua non test which purports to be more adaptable than the traditional formulation of this test.

This paper mainly seeks to interrogate whether the Constitutional Court indeed created a novel approach to factual causation by expanding on the traditional conditio sine qua non test. In doing so, we will examine existing law on the various approaches to establish a factual nexus in an attempt to provide context to this “flexible” conditio sine qua non test. In addition, we shall also consider two schools of thought regarding the appropriate approach to be utilized to determine factual causation, which schools draw upon the co-existence of these various approaches, in a further attempt to highlight the possible flexibility in the factual causation inquiry. Thereafter, consideration will be given to the statements made by the Constitutional Court in the Lee case, and the preceding lower-court judgments, in relation to the issue of factual causation in order to gain greater clarity on the substance of the “flexible” conditio sine qua non test. Lastly, we shall provide an analysis of the court’s judgment to ascertain the importance of flexibility in the factual causation inquiry, and then we shall evaluate whether the Court succeeded in creating a new approach to factual causation and whether the judgment enabled further legal development in this area of the law.