Van Eeden v Minister of Safety and Security (Women's Legal Centre Trust, as Amicus Curiae)

• Jurisdiction: South Africa
• Judge: Hefer Ap, Vivier ADP, Olivier JA, Schutz JA and Jones AJA
• Judgment Date: 27 September 2002
• Citation: 2003 (1) SA 389 (SCA)
• Docket Number: 176/2001
• Hearing Date: 23 August 2002
• Counsel: E W Dunn SC (with him K W Lüderitz) for the appellant. P J J de Jager SC (with him C J J Brand) for the respondent. W H Trengove SC (with him J Kentridge) for the amicus curiae.
• Court: Supreme Court of Appeal

Vivier ADP:

[1] On 5 August 1998 and at Pretoria the appellant, a 19-year-old woman, was sexually assaulted, raped and robbed by one E André Gregory Mohamed, a known dangerous criminal and serial rapist who had escaped from police custody in Durban on 22 May 1998.

[2] Mohamed escaped from police cells, where he was being held for an identification parade, through an unlocked security gate. At the time he was facing no fewer than 22 charges, including indecent F assault, rape and armed robbery committed in the Durban area. Within six days of his escape he resumed his sexual attacks on young women, this time near Pretoria. The appellant was the third victim of the latter series of attacks.

[3] Following the attack on her the appellant instituted an action for delictual damages against the State, represented by the G respondent, in the Transvaal High Court. She claimed that members of the South African Police Service owed her a legal duty to take reasonable steps to prevent Mohamed from escaping and causing her harm and that they negligently failed to comply with such duty. H

[4] At the trial the question of liability was by agreement separated from that of the quantum of damages. Vicarious liability, negligence and causation were conceded by the respondent so that the only issue remaining for decision was whether the police owed the appellant a legal duty to prevent Mohamed from escaping and causing her harm. I

[5] This issue was further narrowed by the respondent's admission that at the time of Mohamed's escape the police realised that he was a dangerous criminal who was likely to commit further sexual offences; that his continued detention was necessary for the protection of the general public and their personal rights and property; that his escape J

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could easily have been prevented by ensuring that the gate was locked and that, in view of the high incidence of A escapes from police custody and sexual attacks on women at the time of Mohamed's escape, the police had come to regard these matters as a 'policing priority'. The police are to be commended for not arguing the unarguable and for their co-operation in restricting the trial in this way to the true legal issue. B

[6] The Court a quo (Swart J) dismissed the appellant's claim and made no order as to costs. The judgment of the Court a quo is reported sub nom Van Eeden v Minister of Safety and Security 2001 (4) SA 646 (T). Swart J held that he was bound by the decision of this Court in Carmichele v Minister of Safety and Security and Another 2001 (1) SA 489 (SCA) and C concluded that the police owed no legal duty to the appellant to act positively in order to prevent harm. With the leave of the Court a quo the appellant now appeals to this Court.

[7] Since the judgment of the Court a quo was delivered the Constitutional Court has upheld an appeal against this Court's judgment in Carmichele. The judgment of the D Constitutional Court is reported sub nom Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC).

[8] The Constitutional Court held (at paras [32] - [37]) that in applying the traditional, pre-constitutional test for determining the element of wrongfulness for omissions in delictual actions for E damages as it had developed in our common law, this Court had overlooked s 39(2) of the Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution), which requires all our courts to develop the common law so as to reflect the spirit, purport and objects of the Bill of Rights. F

The Constitutional Court said (para [57]) that it was by no means clear how the constitutional obligation on the State to respect, protect, promote and fulfil the rights in the Bill of Rights and, in particular, the right of women to have their safety and security protected, translated into private-law duties towards individuals, and proceeded to speculate on the different ways of developing the common law, in particular the wrongfulness element of delictual liability. The G Court did not undertake the exercise of developing the common law itself. It held that the trial Court should not have granted an order for absolution from the instance and remitted the case to the High Court for the trial to proceed.

[9] Our common law employs the element of wrongfulness (in addition to the requirements of fault, causation and harm) to determine H liability for delictual damages caused by an omission. The appropriate test for determining wrongfulness has been settled in a long line of decisions of this Court. An omission is wrongful if the defendant is under a legal duty to act positively to prevent the harm suffered by the plaintiff. The test is one of reasonableness. A defendant is I under a legal duty to act positively to prevent harm to the plaintiff if it is reasonable to expect of the defendant to have taken positive measures to prevent the harm. The Court determines whether it is reasonable to have expected of the defendant to have done so by making a value judgment based, inter alia, J

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upon its perception of the legal convictions of the community and on A considerations of policy. The question whether a legal duty exists in a particular case is thus a conclusion of law depending on a consideration of all the circumstances of the case and on the interplay of the many factors which have to be considered. See the judgment of this Court in Carmichele at para [7] and recent decisions of this Court in Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA) paras [14] - [17]; Cape Metropolitan Council v B Graham 2001 (1) SA 1197 (SCA) para [6]; Olitzki Property Holdings v State Tender Board and Another 2001 (3) SA 1247 (SCA) paras [11] and [31]; BOE Bank Ltd v Ries 2002 (2) SA 39 (SCA) para [13] and the unreported judgment of this Court in Minister of Safety and Security v Van Duivenboden, case No 209/2001 delivered on 22 August 2002, [*] para [16]. C

[10] In applying the concept of the legal...