Minister of Safety and Security and Another v Carmichele

• Jurisdiction: South Africa
• Judge: Harms JA, Streicher JA, Farlam JA, Navsa JA and Lewis JA
• Judgment Date: 14 November 2003
• Citation: 2004 (3) SA 305 (SCA)
• Docket Number: 533/02
• Hearing Date: 03 November 2003
• Counsel: J A le Roux SC (with him R Jaga) for the appellants. W H Trengove SC (with him T N Price and A M Breitenbach) for the respondent.
• Court: Supreme Court of Appeal

Harms JA: H

[1] This appeal concerns the delictual liability of the State for damages suffered by the respondent, Ms Carmichele, as a result of a vicious assault perpetrated on her by one Coetzee. It is not the case that the State is vicariously liable for what Coetzee did but it is sought to be held liable for damages where the damage was inflicted I by a party unrelated to the State. [1]

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[2] Five months before the assault on the plaintiff Coetzee was released on his own recognisance pending his trial on a A charge of rape of Ms Eurona Terblanche, [2] a 17-year-old schoolgirl. The police and the prosecutor had recommended to the court that he could be released with a warning to appear at a later date and the magistrate, who was not apprised of any B further facts, accepted the recommendation and ordered his release accordingly. [3] Since the decision to release Coetzee was that of the magistrate, the plaintiff's allegations for the basis of her claim are - broadly stated - that the police officers concerned and the prosecutor should have realised that Coetzee was a danger to society; they were duty bound to oppose Coetzee's application for release pending his trial; in this regard they owed, amongst others, Ms Carmichele (to whom I shall refer as 'the plaintiff') a legal duty; C they were negligent in not having opposed his release; had they done so, he would not have been released by the court; had he been kept in detention he would not have assaulted the plaintiff.

[3] The case has followed a circuitous route. The assault on the plaintiff occurred already on 6 August 1995 and the case against the appellants came to trial during September 1997 before D Chetty J, sitting in the Cape Provincial Division. At the conclusion of the plaintiff's case he granted absolution from the instance, finding that the plaintiff had failed to make out a prima facie case of wrongfulness, which is the primary element for delictual liability. An appeal to this Court was dismissed on the same ground on 2 E October 2000. That judgment will be referred to as 'Carmichele (SCA)'. [4] However, the plaintiff had a measure of success when a further appeal to the Constitutional Court was upheld, the order of absolution from the instance set aside and the matter referred back to the trial Court to proceed with the trial. The judgment of the Constitutional Court will be referred to as 'Carmichele (CC)'. [5] During March 2002, the trial F recommenced and at its conclusion Chetty J found in favour of the plaintiff, holding the appellants, the Ministers of Safety and Security and of Justice (in fact of Justice and Constitutional Development) liable; quantum stood over for later adjudication. His judgment, [6] delivered on 14 May 2002, will be referred to as 'Carmichele (CPD)' and it is the G judgment presently on appeal. [7] Most of the facts relevant to the

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appeal have been stated in one or more of these judgments and since they are not really in contention, I intend to make A copious use of those expositions. In Carmichele (CC) there is a chronology of events; however for purposes of this judgment I shall not make use of a chronology since it may be misleading: the elements of delictual liability cannot be assessed on an ex post facto basis. Only the facts known or available at any given time are relevant. B

The attack on the plaintiff

[4] The detail of the attack at this stage of the case is relevant only insofar as it establishes the motive for and nature of the attack. Why that is of moment will become apparent at a later stage of the judgment. The attack took place at the home of Ms Julie Gösling at C Noetzie, a secluded seaside hamlet some 12 kilometres from Knysna. On Sunday 6 August 1995 the plaintiff went to Gösling's home where they had arranged to meet. Gösling had not yet arrived. The plaintiff went into the house and was confronted by Coetzee who apparently had broken in. When she saw him he immediately attacked her with a pick D handle. His blows were directed at her head and face. When she lifted her arm to protect herself, one of the blows struck and broke her arm. He threatened her and dragged her around the house. He repeatedly ordered her to turn around. She refused to do so. He discarded the pick handle and lunged at her with a knife. He stabbed her left breast and the blade of the knife buckled as it hit her breastbone. He lunged at E her again and she kicked him. He lost his balance and she managed to escape through a door. He left the scene with a number of valuables. [8]

[5] This summary of the attack was based on the evidence of the plaintiff which was before the Constitutional Court. No further evidence was led in this regard and the trial Court adopted the summary F as its finding of fact. [9] Neither Court found that Coetzee attempted to rape the plaintiff, something alleged by her in the particulars of claim. There was also no finding that the assault had been indecent or committed with an indecent intent. G

[6] In her fairly extensive statement to the police, too, there was no suggestion of an attempted rape. [10] That is the reason, one assumes, why Coetzee was charged with attempted murder and housebreaking and theft but not rape. During her evidence-in-chief in the criminal trial she also did not refer to an attempted rape. The closest she came to the subject of rape was when she dealt with the events that preceded the stabbing. She said: H

'. . . well he had a knife in his mouth most of the time and then he kept threatening me with, by saying that I must turn around [she was on her knees] and he is going to count to three otherwise he is going to hit me with the stick. And then he threw the stick aside and pulled, took the knife out of his mouth and I

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stood over me and stabbed me [in the chest].' A

During cross-examination she stated that Coetzee had not said what he intended doing after she had turned around but she added

'I kind of felt that he wanted to rape me.'

At the criminal trial Coetzee's plea explanation, namely that the motive for the attack was because she had caught him burgling the home of Gösling, was put to the plaintiff and she did not suggest B otherwise. Coetzee, it might be mentioned, had been suspected previously, at least by Gösling, of being a petty burglar and thief. Immediately after this event he broke into another home, which was unoccupied, and stole some insignificant items. He was convicted not only of attempting to murder the plaintiff, but on two counts of C housebreaking and theft as well.

[7] At the trial in the Court below, the plaintiff explained that Coetzee wanted her to turn around and lie down on the floor facing the ground. She recalled, she said, 'thinking' at the time that he wanted to rape her. When cross-examined on the proceedings in the D criminal court, she said that since she was there she knew that he wanted to rape her. She conceded, however, that Coetzee never said or suggested that he was going to rape her and that, apart from the request to lie on her stomach, there was nothing else on which her inference was based. E

[8] The thought of rape had, no doubt, crossed the plaintiff's mind because she knew Coetzee, she had been told that he had a previous conviction for rape, she believed that he had raped Ms Eurona Terblanche and she and, especially, Gösling believed that he was a menace to society who should be behind bars. But all this does not mean that any indecent intention on the part of Coetzee was established on a F balance of probability.

The case of Eurona Terblanche

[9] On Monday, 6 March 1995, Coetzee appeared before a magistrate at Knysna on a charge of rape. It was his first appearance G on the charge, the crime having been committed during the preceding Friday night. The State was not ready to proceed and applied for a postponement, which was granted. Coetzee presumably applied for bail but in the event, as mentioned, the prosecutor did not oppose his release and in fact recommended that he be released on warning. H

[10] At the time the police docket indicated that Coetzee had, apparently ('blykbaar'), been involved in a prior rape case. The information came from the complainant's mother. There was a statement by the complainant, taken on the Saturday morning, describing an attempted murder (he told her that he was going to kill her and he throttled her until she lost consciousness) and a rape (or at least an I attempted rape) by Coetzee whom she knew quite well. The police officer who took her statement completed a form setting out the visible injuries to her face and leg. This and an investigation at the scene of the crime corroborated her version. Importantly, there was a warning statement by Coetzee to the investigating J

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officer in which he said that he thought that he might have throttled the A complainant; [11] that he had been under the influence of liquor but knew what he was doing; that he could not dispute that he had raped her or had sexual relations with her; and that he had, after the event, contacted the police. Although not reflected in the docket at the time, Coetzee, after having left a hotel in the company of the complainant that Friday night, returned and B alleged that he had killed someone and asked that the police be called. That was done but in the absence of any further information relating to the murder Coetzee was arrested for being drunk in public.

[11] Primary responsibility for the contents of a docket rests with the investigating officer, in this case one Klein who, at the C time, was an experienced detective sergeant of 15 years' standing. Klein had to hand the docket to a superior officer, the then Captain Hugo, whose task it was to inspect the...