Carmichele v Minister of Safety and Security and Another

• Jurisdiction: South Africa
• Judge: Van Heerden ACJ, Vivier JA, Howie JA, Schutz JA and Zulman JA
• Judgment Date: 02 October 2000
• Citation: 2001 (1) SA 489 (SCA)
• Docket Number: 310/98
• Hearing Date: 22 September 2000
• Counsel: A M Breitenbach (with him T Price) for the appellant. J A le Roux SC (with him R Jaga) for the respondents.
• Court: Supreme Court of Appeal

Vivier JA:

[1] During the morning of 6 August 1995 the appellant, a 28-year-old woman, was brutally assaulted with a pick handle and knife by one J

Vivier JA

Coetzee at the home of Ms Julie Gösling at Noetzie, a small, secluded seaside village near Knysna. The appellant sustained head A injuries and a broken arm in the attack.

[2] Coetzee was a convicted criminal, having been found guilty on 6 September 1994 in the Regional Court at Knysna on charges of B housebreaking and indecent assault for which he had been sentenced to a fine and suspended periods of imprisonment. These charges had arisen from an incident during the night of 3 January 1994 at the home of Ms Beverley Claassen in Hornlee, Knysna. At the time of the attack on the appellant Coetzee was, in addition, facing a charge of having raped a young woman, Eurona Terblanche, at the Hornlee sports grounds on C 4 March 1995. Coetzee had first appeared on this charge in the Knysna magistrate's court on 6 March 1995, when he had been released on his own recognisance. On 15 March 1995 he had been taken into custody and sent to Valkenberg Hospital for observation. On 18 April 1995, upon his return from Valkenberg Hospital, he had appeared in the Knysna magistrate's court when he had again been D released 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.

[3] On the Terblanche charge Coetzee was eventually convicted of E attempted rape on 15 September 1995 and was sentenced to seven years' imprisonment. For the attack on the appellant he was convicted of attempted murder on 13 December 1995 and sentenced to 10 years' imprisonment.

[4] Following the attack on her by Coetzee the appellant brought a delictual action for damages against the two respondents in the F Cape Provincial Division in consequence of the injuries she had sustained at the hands of Coetzee. The appellant's case, as pleaded, was that the members of the South African Police as well as the public prosecutors at Knysna owed her a legal duty to act in order to prevent Coetzee causing her harm and that they had negligently failed to comply G with such duty. It was common cause that the police and prosecutors at all relevant times acted in the course and scope of their employment as servants of the respective respondents.

[5] The trial came before Chetty J, who was asked to decide only the issue of liability and to permit the question of the H quantum of damages to stand over. At the conclusion of the appellant's case the learned Judge held that there was no evidence upon which a court, applying its mind reasonably to such evidence, could find for the plaintiff that the said duty had existed and that the police and public prosecutors at Knysna had acted wrongfully. He I accordingly granted an order of absolution from the instance with costs. With the leave of the Court a quo the appellant appeals to this Court. In the circumstances we are not concerned with the question whether negligence was proved or the further question whether any possible negligence could ever have been causally related to the appellant's loss. J

Vivier JA

[6] The legal duty contended for was one owed to the appellant to act positively in order to ensure that Coetzee was remanded in A custody pending his trial on the rape charge and to ensure that he was re-arrested when complaints about his behaviour were made to the police and prosecuting authorities on 20 June 1995 and 2 August 1995. The duty to secure his re-arrest was limited to the prosecutors. B

[7] 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 this Court such as Minister van Polisie v Ewels 1975 (3) SA 590 (A) at 597A - C; Minister of Law and Order v Kadir 1995 (1) SA 303 (A) at 317C - 318I; C Knop v Johannesburg City Council 1995 (2) SA 1 (A) at 27G - I and Government of the Republic of South Africa v Basdeo and Another 1996 (1) SA 355 (A) at 367E - 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 D 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 318E - H:

'As the judgments in the cases referred to earlier demonstrate, conclusions as to the existence of a legal duty in cases for which E 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 F 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...