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

JurisdictionSouth Africa

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening)
2001 (4) SA 938 (CC)

2001 (4) SA p938


2001 (4) SA 938 (CC)

Case No



Constitutional Court


Chaskalson P, Ackermann J, Goldstone J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, Sachs J, Yacoob J, Madlanga AJ and Somyalo AJ


March 20, 2001


August 16, 2001


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.

Flynote : Sleutelwoorde E

Constitutional law — Common law — Development of — Duty of Courts to develop common law 'in accordance with spirit, F purport and objects of Bill of Rights' as intended in s 39(2) of Constitution of the Republic of South Africa Act 108 of 1996 — Where common law deficient in promoting objectives of s 39(2), courts under general obligation to G develop it appropriately — Existence of said obligation depending on circumstances — Although independent enquiry not required in each and every case, Court may have to raise issue meru moto where necessary — Investigation under s 39(2) consisting of two stages, (1) enquiry as to whether common law requiring development in accordance with objectives of s 39(2) and, if so, (2) enquiry as to H how such development to take place in order to meet objectives of s 39(2) — Development of common law under s 39(2) requiring close interaction between, on one hand, High Courts and Supreme Court of Appeal and, on other hand, Constitutional Court, so that latter may have benefit of expertise of former in common-law matters, particularly I as to whether common law should or should not be developed in particular case.

Constitutional practice — Courts — Development of common law — Approach of Courts to applications for absolution from the instance in cases where required to develop common law in terms of s 39(2) of Constitution of the Republic of South Africa Act 108 of 1996 — Absolution to be granted J

2001 (4) SA p939

where clearly no merit in submission that common law should be developed to provide relief to plaintiff — However, where factual A situation complex and legal position uncertain, preferable for Court to refuse absolution.

Negligence — Liability for — Duty of care — When it arises — Duty of State and its organs to protect members of public — Existence of — In general, wrongfulness of omissions in delictual actions to be determined by weighing and striking of balance between interests of parties and B conflicting interests of community — This 'proportionality' test to be conducted in accordance with 'spirit, purport and objects of Bill of Rights' as intended in s 39(2) of Constitution of the Republic of South Africa Act 108 of 1996 and relevant factors to be weighed in context of Constitutional State founded on dignity, equality and freedom — Since Bill of Rights binding State and its organs (s 8(1) of C Constitution), duty imposed on them not to perform any act infringing such rights — In certain circumstances positive component arising obliging State and organs to provide appropriate protection to everyone through laws and structures designed to afford such protection — No ground for immunity of public officials from delictual claims by public D or for drawing distinction between actions and omissions by such officials — Limits of delictual liability to be established by striking balance between interests of parties and conflicting interests of community, and by requirements of foreseeability and proximity.

Criminal procedure — The prosecution — Conduct of — Duty to carry out public functions independently and in interests of public — Courts E to take into account pressures under which prosecutors work and not to use hindsight as basis for unfair criticism.

Criminal procedure — Bail — Application for — Duty of prosecutor — Prosecutor to place before court any information relevant to court's exercise of discretion with regard to granting or refusal of bail — Semble: Prosecutor who has information that accused violent, F has grudge against complainant and has threatened to do him or her violence if released on bail liable for consequences of negligent failure to bring such information to attention of court.

Headnote : Kopnota

During August 1995 the applicant, a 28-year-old woman, was brutally assaulted by one C at the home of a Mrs G, situated in a small and G secluded village on the Cape south coast. C had previously, during September 1994, been convicted on charges of housebreaking and indecent assault for which he had been sentenced to a fine and suspended periods of imprisonment. At the time of the attack on the applicant C was, in addition, facing a charge of rape. C had first appeared on this charge in a magistrate's court on 5 March 1995, when he was released by H the magistrate on his own recognisance on the recommendation of the investigating officer, one K. A few days after C's release from custody G was informed of the rape and of C's previous conviction for indecent assault. She asked the police to see to it that C was kept in custody pending his trial. The officer in question advised G to discuss the matter with the public prosecutor, who in turn told G that nothing I could be done unless C committed another offence. Shortly thereafter, and subsequent to a suicide attempt and an interview with the prosecutor that revealed serious sexual deviation, C was re-arrested and sent to a psychiatric hospital for observation. Upon his return in April 1995 he again appeared in the magistrate's court. According to the report from the hospital C was capable of understanding the proceedings making a J

2001 (4) SA p940

proper defence, and had also been mentally capable at the time of the rape. The report did not declare C to be a danger to A society or recommend that he be kept in custody, and he was, after having pleaded not guilty, re-released by the magistrate on his own recognisance pending a decision by the Attorney-General on whether the case should be tried in the High Court or the regional court. The Attorney-General, who had been in possession of the referral documents (which reflected the seriousness of the rape and the extent of C's B sexual deviation), had not instructed the prosecutor to oppose bail, with the result that C's release was not opposed. After his release the applicant had spotted C snooping around G's house, where she frequently stayed. G once again spoke to the senior prosecutor, who again informed her that she was powerless to do anything about C. A few days later C attacked the applicant at G's house, seriously wounding her. The applicant brought a delictual action in the High Court for C damages against the two respondents (the second respondent being the Minister of Justice) for the injuries she had sustained during the attack. The applicant's case was that the members of the police as well as the public prosecutors involved had owed her a legal duty to act in order to prevent C from causing her harm and that they had negligently failed to comply therewith. The High Court held that D there was no evidence upon which a court could reasonably find that the said duty had existed and that the police or public prosecutors had acted wrongfully. It accordingly ordered absolution from the instance. The applicant appealed to the Supreme Court of Appeal (the SCA), but the appeal was dismissed with costs. The applicant then launched the instant application for leave to appeal to the Constitutional Court (the CC). In considering the application, the CC also heard argument on E the merits of the appeal. Before the CC the applicant contended that the police and prosecutors involved had owed her a duty to safeguard her constitutional right to life, the respect for and protection of her dignity, freedom and security and privacy. It was further submitted that the police and prosecution services were among the primary agencies of State responsible for the discharge of its constitutional F duty to protect the public in general and women in particular against violent crime, and that, on the facts of the instant case, the applicant was entitled to damages in delict for their failure to do so. She submitted that the High Court and the SCA had erred in not applying the relevant provisions of the (interim) Constitution of the Republic of South Africa Act 200 of 1993 in determining whether the police and G prosecutors had been obliged to protect her. Counsel for the applicant relied in particular on the constitutional obligation to 'develop the common law' with due regard to the 'spirit, purport and objects' of the Bill of Rights as intended in s 35(3) of the interim Constitution and s 39(2) of the (new) Constitution of the Republic of South Africa Act 108 of 1996. Neither the High Court nor the SCA had had regard to the relevant provisions of the Bill of Rights or to ss 35(3)/39(2). H

Section 8(1) of the new Constitution provided that the 'Bill of Rights applies to all law, and binds the Legislature, the Executive, the Judiciary and all organs of State'; s 39(2) provided that 'when developing the common law, every court . . . must promote the spirit, purport and objects of the Bill of Rights'; and s 173 provided that the 'Constitutional Court, Supreme Court of Appeal and High Courts I have the inherent power to . . . develop the common law, taking into account the interests of justice'.

Held, that since all Courts were constitutionally obliged to promote the spirit, purport and objects of the Bill of Rights when developing the common law, they were compelled to eliminate any common-law deviation from these aims. The proceedings in the High Court and SCA took place after the new J

2001 (4) SA p941

Constitution had come...

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