Minister of Safety and Security and Another v Carmichele

• Jurisdiction: South Africa
• Citation: 2004 (3) SA 305 (SCA)

Minister of Safety and Security and Another v Carmichele
2004 (3) SA 305 (SCA)

2004 (3) SA p305

Citation	2004 (3) SA 305 (SCA)
Case No	533/02
Court	Supreme Court of Appeal
Judge	Harms JA, Streicher JA, Farlam JA, Navsa JA and Lewis JA
Heard	November 3, 2003
Judgment	November 14, 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.

Flynote : Sleutelwoorde B

Negligence — What constitutes — Duty of care — Duty of police and prosecuting authorities to victim of assault by convicted criminal who had been released pending trial — Plaintiff instituting delictual action for damages against police and prosecuting authorities for injuries sustained during attack — As to existence of State duty to C plaintiff, State liable for failure to perform duties imposed upon it by Constitution save where compelling reason existing to deviate from that norm — No reason in casu to depart from general principle — Police and prosecutor to have either opposed bail or placed available facts before court — Reasonable police captain and reasonable control prosecutor would have refrained from recommending release and opposed D bail, or at least placed relevant facts before court — Should have foreseen possibility of further violent crime being committed by accused — Police and prosecutors failing in their duties — Negligence established — As to causation, magistrate would probably have refused bail or fixed it at substantial amount had bail application been opposed — State liable. E

Negligence — Liability for — Causation — Remoteness of damage — Novus actus interveniens — Subjective test applied — Plaintiff instituting delictual action for damages against police and prosecuting authorities for injuries sustained during attack — Claim based on negligence of police and prosecutors in failing to oppose F bail — Reasonable police and prosecutor would have refrained from recommending release and opposed bail, or at least placed relevant facts before court — Court releasing accused, not police or prosecutor — As to causation, to be determined what magistrate would have done had bail application been opposed — Would probably have refused bail or fixed it at substantial amount — Defendants liable. G

Headnote : Kopnota

Some five months before assaulting the plaintiff (the present respondent), one C was released on his own recognisance pending his trial in a magistrate's court on a charge of rape. The police and the prosecutor had recommended to the magistrate that C be released on warning, and the magistrate, who had not been apprised of any further H facts, had accepted the recommendation and ordered C's release. The plaintiff proceeded to institute, in a Provincial Division, a delictual claim for damages against the Minister of Safety and Security and the Minister of Justice (the present appellants). The claim was based on the following averments: that the police officers concerned with the rape case, K and H, and the prosecutor, L, ought to have realised that I C was a danger to society; that they had been duty bound to oppose C's application for release pending trial; that in this regard they had owed the plaintiff, amongst others, a legal duty; that they had been negligent in not opposing his release; that had they done so, he would not have been released; and that had he been kept in detention he would not have assaulted the plaintiff. At the conclusion of the plaintiff's case the J

2004 (3) SA p306

Provincial Division granted absolution from the instance on the ground that the plaintiff had failed to make out a A prima facie case of wrongfulness. Plaintiff's appeal to the Supreme Court of Appeal was dismissed on the same ground. She then launched a further appeal to the Constitutional Court, which set aside the order for absolution and referred the matter back to the trial Court to proceed with the trial. This time the trial Court found in favour of the plaintiff and held the appellants liable. The appellants once again appealed to the SCA. B

Held, that in order to assess whether H and L had had a public law duty to oppose bail, the information at their disposal as it appeared from the docket had to be considered. In the instant case departmental instructions to both the police and to prosecutors had made it clear that they were duty-bound to oppose any bail application in cases like that of C. (Paragraph [35] at 320G - H.) C

Held, further, that there could be little doubt that H and L had had a public law duty to either oppose bail or to place all relevant and readily available facts before the Court, and that they failed in their duty. (Paragraph [36] at 321C - D.)

Held, further, as to whether the breach of this duty could be transposed into a private law breach leading to an award of damages, D that someone in the position of the plaintiff had no other effective remedy against the State: an action for damages was the norm unless public policy considerations pointed in the other direction. In addition, the position of prosecutors could in principle be no different from that of the police. (Paragraphs [37] and [38] - [39] at 321D - D/E and 322E/F - G.) E

Held, further, that the question was then whether in the circumstances of the case, there were public policy considerations that pointed in another direction. The appellants submitted that H and L were merely guilty of a reasonable error of judgment and that a duty of care should accordingly not be imputed to them. (Paragraph [40] at 322I.)

Held, further as to whether the State owed a duty to the plaintiff, that the answer lay in the recognition of the general norm F of accountability: the State was liable for the failure to perform the duties imposed upon it by the Constitution unless it could be shown that there was compelling reason to deviate from that norm. (Paragraph [43] at 324B.)

Held, further, that there was no reason in this case to depart from the general principle that the State was liable for its failure to comply with its Constitutional duty to protect the G plaintiff. On the contrary, the plaintiff was pre-eminently a person who required the State's protection. It was known by the police and prosecutors that C resided in N with his mother. N is a small hamlet with a few houses. C's mother worked for G in the house where the attack on the plaintiff occurred. She regularly visited the house. She knew C. The attack took place within four months after his release after a previous attack. The plaintiff was thus not simply a member of H the public whom the State had a duty to protect. She was a member of a class of people whom the State would have foreseen as being potential victims of another attack by C. Proximity, while not an independent requirement for wrongfulness, must surely reinforce the claim that the State should be held liable for a culpable failure to comply with its duties. And foreseeability of harm is another factor to be taken into I account in determining wrongfulness. The greater the foreseeability, the greater the possibility of a legal duty to prevent harm existing. (Paragraph [44] at 324C - G.)

Held, further the Court had, in order to determine negligence, to inquire whether a reasonable police captain (in the position of H) and a reasonable control prosecutor (in the position of L) would have recommended, with the J

2004 (3) SA p307

information at their disposal, that C should be released, whether on bail or on warning. (Paragraph [46] A at 325G - H.)

Held, further, that a reasonable person in the position of both H and L would not have made the recommendation and would, at least, have placed the relevant facts at their disposal before the Court. (Paragraph [50] at 326H.)

Held, further, that such a person would also have foreseen the reasonable possibility that their conduct could have led to a further crime of violence being committed by C, and have taken the B reasonable step of opposing bail to prevent his release. Accordingly negligence was established. (Paragraphs [51] and [53] at 326I and 327F - G.)

Held, further, that the matter was, however, complicated by the fact that C had been released in terms of a court order and not by H or L, something which could be seen as a novus actus interveniens. (Paragraph [54] at 327H - H/I.) In this respect a C subjective test had to be applied in order to determine what the relevant magistrate would have done on the probabilities had the application for bail been opposed. (Paragraph [60] at 329C - D.)

Held, further, that the magistrate who had released C on warning would, more probably than not, have refused bail. At best for the appellants he might have granted bail but fixed it at a substantial amount that C or his family would not have been able to afford. Release D C with a warning he would not have done. Factual causation had accordingly been established. (Paragraph [71] at 332D - E.) Appeal dismissed.

The decision in Carmichele v Minister of Safety and Security and Another 2003 (2) SA 656 (C) (2002 (10) BCLR 1100) confirmed on appeal. E

Cases Considered

Annotations

Reported cases

Akenzua and Another v Secretary of State for the Home Department and Another [2003] 1 All ER 35 (CA) ([2002] EWCA Civ 1470): referred to

Ali Ahmed v Attorney-General 1921 TPD 587: dictum at 598 applied

BOE Bank Ltd v Ries 2002 (2) SA 39 (SCA) ([2002] 2 B All SA 247): dictum in para [21] applied F

Caparo Industries plc v Dickman and Others [1990] 2 AC 605 (HL) ([1990] 1 All ER 568): referred to

Carmichele v Minister of Safety and Security and Another 2001 (1) SA 489 (SCA) ([2000] 4 B All SA 537): referred to

Carmichele v Minister of Safety and Security and Another 2003 (2) SA 656 (C) (2002 (10) BCLR 1100): confirmed G on appeal

Carmichele v...