Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening)

• Jurisdiction: South Africa
• Judge: Chaskalson P, Ackermann J, Goldstone J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, Sachs J, Yacoob J, Madlanga AJ and Somyalo AJ
• Judgment Date: 16 August 2001
• Citation: 2001 (4) SA 938 (CC)
• Docket Number: 48/00
• Hearing Date: 20 March 2001
• Counsel: W H Trengove SC (with A M Breitenbach) for the applicant. J A le Roux SC (with R Jaga) for the respondents. J Kentridge for the amicus curiae.
• Court: Constitutional Court

Ackermann et Goldstone JJ: D

The background

[1] On the morning of 6 August 1995, Alix Jean Carmichele (the applicant) was viciously attacked and injured by Francois Coetzee (Coetzee). The attack took place at the home of Julie Gosling (Gosling) E at Noetzie, a small secluded village on the sea some 12 kilometres outside Knysna. Coetzee was convicted of attempted murder and housebreaking in the Knysna regional court and was sentenced to an effective term of imprisonment of twelve and a half years.

[2] The applicant instituted proceedings in the Cape of Good F Hope High Court (the High Court) for damages against the Minister for Safety and Security and the Minister of Justice and Constitutional Development. She claimed that members of the South African Police Service and the public prosecutors at Knysna had negligently failed to comply with a legal duty they owed to her to take steps to prevent Coetzee from causing her harm. G

[3] In the High Court, the issue of the liability of the respondents was separated from that of damages. At the close of the applicant's case, Chetty J found that there was no evidence upon which a court could reasonably find that the police or prosecutors had acted wrongfully. He granted an order of absolution from the instance in favour of the respondents with costs. With the leave of the High H Court, the applicant appealed to the Supreme Court of Appeal (the SCA). The appeal was dismissed with costs. [1]

[4] The applicant now seeks special leave to appeal to this Court from the order of the SCA. In considering the application, we also heard argument on the merits of the appeal. The jurisdiction of I this Court to entertain such an application and the requirements for the grant of

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special leave were considered in S v Boesak. [2] It was pointed out by A Langa DP, with reference to s 167(3)(b) of the Constitution of the Republic of South Africa Act 108 of 1996, that the issues to be decided must be constitutional matters or issues connected with decisions on constitutional matters. [3] It must in addition be in the interests of justice that the appeal should be heard and in that regard the prospects of success constitute an important B factor. [4] The Deputy President stated, inter alia, that:

'Under s 167(7), the interpretation, application and upholding of the Constitution are also constitutional matters. So, too, under s 39(2), is the question whether the interpretation of any legislation or the development of the common law promotes the spirit, purport and C objects of the Bill of Rights.' [5]

In this case we are primarily concerned with the development of the common-law delictual duty to act.

The facts

[5] The facts which emerged from the evidence adduced on behalf of the applicant in the High Court appear from the judgment of Chetty J D and from that of Vivier JA who delivered the unanimous judgment of the SCA. It will make the discussion in this judgment more comprehensible if the relevant facts are restated.

[6] Coetzee was born in 1973. He had problems of a sexual nature from about the age of ten years and had sexually molested his niece E when in his early teens. His mother, Mrs Annie Coetzee, had been sufficiently concerned to seek advice from their doctor but had been advised that her son was too young to be given medication. F

[7] Coetzee passed his matriculation examinations. He sang for some time in a choir that devoted its time to entertaining ill people. He also spent many hours at home reading.

[8] On 3 June 1994, when he was 20 years of age, Coetzee committed an indecent act on a 25-year-old acquaintance of his, Beverley Claassen. Late at night, while she was asleep, he climbed G through her open bedroom window and lay next to her in her bed. He indecently fondled her until she awoke and gave the alarm. He escaped through the window and ran off. On 6 September 1994, he stood trial on charges of housebreaking and indecent assault arising from that incident. He H

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pleaded guilty and was convicted of both charges. On the housebreaking charge, he was sentenced to 18 months' imprisonment A conditionally suspended for four years, and on the indecent assault charge he was sentenced to a fine of R600 or six months' imprisonment plus twelve months' imprisonment conditionally suspended for four years.

[9] Less than six months later, on 4 March 1995, Coetzee attempted to rape and murder Eurona Terblanche B (Eurona). [6] Coetzee and Eurona were school friends. She was then 17 years old. After a dance at the Hornlee Hotel, Knysna, Coetzee offered to walk Eurona home. She accepted his offer. Along the way he persuaded her to take a detour along a footpath. At a deserted spot he attempted to kiss her and, when she resisted, he threw C her to the ground and repeatedly punched and kicked her. He dragged her into tall grass and ripped off her clothes. He forcibly held her down by sitting on her while he repeatedly punched her in the face, throttled her and bit her. He threatened to kill her. She eventually lost consciousness. At his subsequent trial, Coetzee admitted he had wanted to rape Eurona but denied that he had done so. Whether in fact D he did rape Eurona after she lost consciousness was not established. He left her for dead and ran back to the Hornlee Hotel.

[10] When Coetzee arrived at the Hornlee Hotel, he informed the management that he had just killed a girl and asked them to summon the E police. When the police arrived he repeated that he had killed a girl but refused to furnish any further details. He was arrested for being drunk in a public place.

[11] Eurona regained consciousness, gathered her clothes and walked to the house of a neighbour and friend. She arrived there at about 4 am. She reported the attack to her friend and shortly F thereafter to her own mother (Mrs Terblanche) who summoned the police. Eurona was taken to hospital where the examining doctor noted the extensive injuries inflicted on her.

[12] During that morning (4 March 1995) Mrs Terblanche and Eurona went to the Knysna charge office where they reported the attack G to the duty officer, Sergeant Beaulah Jantjies (Jantjies). She took a detailed statement from Eurona and Mrs Terblanche who informed her that Coetzee had told them he had a previous conviction for rape. For the benefit of the investigating officer, Jantjies noted that information in the investigation diary. Immediately thereafter, the investigating officer, Detective Sergeant David Klein (Klein), took over the matter. H He also interviewed Eurona and accompanied her to the scene of the attack where he found a sandal and an item of underwear that Eurona told him belonged to her.

[13] The following morning (5 March 1995), Klein interviewed Coetzee, informing him of the charge. He appeared in court I the next day. In his note to the prosecutor, Klein stated that there was no reason to deny

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Coetzee bail and recommended that he be released on warning. Coetzee appeared before magistrate Von Bratt (the A magistrate) on a charge of rape. The prosecutor, Mr G Olivier (Olivier), did not place before the magistrate any information concerning Coetzee's previous conviction, nor did he oppose Coetzee's release on his own recognisance. Coetzee was unconditionally released and warned to appear again on 17 March 1995. B

[14] After his release, Coetzee returned to Noetzie where he was living with his mother. A day or two later, Mrs Terblanche called on Gosling, who is a friend of the applicant. Mrs Coetzee worked for Gosling both as a domestic worker and as a general assistant in her business in Knysna. The purpose of Mrs Terblanche's visit was to C inform Gosling of the attack on Eurona and of Coetzee's previous conviction. In evidence in the High Court, Gosling stated that she was distressed at the news because she thought

'that he would obviously commit this crime again and I felt very scared to be anywhere where he was'. D

She added that she felt

'that he shouldn't maintain a presence in society because my knowledge as a nursing sister and just in life is that a man that has committed two similar crimes is going to do it again'.

[15] Because of her concern, Gosling went to speak to Captain Lawrence Oliver (Oliver), a police officer at the Knysna police E station. She told him she did not think that Coetzee 'should be out on the street' and asked whether he could not be detained pending his trial. Oliver advised her to discuss the matter with the senior prosecutor at Knysna, Ms Dian Louw (Louw). Gosling went to Louw whom she knew well. Her office was in the same building as the Knysna police F station. She told Louw that she

'was afraid that Francois would hurt one of my friends or me and that I really thought he would commit this crime again'.

Louw informed her that there was no law to protect them and that the authorities' hands were tied unless Coetzee committed another offence. G

[16] On 10 March 1995, Coetzee called at the Terblanche home and told Mrs Terblanche that he wanted to talk. She ordered him off the premises and summoned the police. Coetzee ran away. When the police arrived, she reported the incident. She was upset that he was at large.

[17] On 13 March 1995, Mrs Coetzee's relative, Detective Sergeant Grootboom (Grootboom) gave her a lift home. He was also H stationed at the Knysna police station. She informed him that she was concerned about Coetzee, who was withdrawn, and she feared he might attempt suicide or 'get up to something'. She raised these concerns with Grootboom in the hope that he might arrange for her son to be sent to some institution where he could be treated. When they arrived at her I home they found that Coetzee had indeed attempted...