Authored By: Lumka Ama Acheaw
Case Title & Citation
Carmichele v Minister of Safety and Security and Minister of Justice and Constitutional Development 2001 (4) SA 938 (CC)
Case No: CCT 48/00
Court Name & Bench
Court: Constitutional Court of South Africa
Bench: Ackermann J and Goldstone J delivered the unanimous judgment
Date of Judgment
Heard on: 20 March 2001
Decided on: 16 August 2001
Parties Involved
Applicant: Alix Jean Carmichele — a woman attacked and seriously injured by an accused person who had previously been charged with violent sexual offences.
Respondents:
- Minister of Safety and Security
- Minister of Justice and Constitutional Development
The applicant sued the respondents for damages, claiming negligence by the police and prosecutors who failed to take steps to prevent foreseeable harm.
Facts of the Case
On 6 August 1995, Francois Coetzee, who had a known history of sexual violence, attacked Alix Jean Carmichele at a friend’s house in Noetzie. Before the attack, Coetzee had been charged with the attempted rape and assault of another woman but was released on his own recognisance by the Knysna magistrate’s court. The investigating officer (Sergeant Klein) and the prosecutors (Ms Louw and Mr Olivier) were aware of Coetzee’s prior conviction for indecent assault and the violent nature of his offences, yet they failed to oppose his release or take protective measures.
Carmichele was brutally attacked after warnings about Coetzee’s danger had been ignored. She then sued the Ministers for damages, alleging that the police and prosecutors owed her a legal duty to protect her and had breached that duty. The High Court granted an absolution from the instance, and the Supreme Court of Appeal dismissed her appeal. The applicant’s claim was based on the idea that both the police and the prosecution had sufficient knowledge of Coetzee’s violent history and the potential risk he posed to women in the community. Their failure to act on that knowledge, or to advise the magistrate against granting bail, directly exposed her to foreseeable harm, creating a link between their omission and the injuries she sustained. She sought special leave to appeal to the Constitutional Court.
Issues Raised:
- Whether the police and prosecutors owed a legal duty to protect the applicant from harm caused by Coetzee.
- Whether the common law of delicts should be developed under section 39(2) of the Constitution to reflect the spirit, purport, and objects of the Bill of Rights. •Whether the state can be held delictually liable for its officials’ failure to prevent foreseeable harm.
Arguments of the Parties
Applicant (Carmichele):
– Argued that the police and prosecutors had a constitutional duty to protect her rights to life, dignity, and security of the person under the Interim Constitution and section 7(2) of the 1996 Constitution.
– Submitted that their failure to act constituted a negligent breach of a legal duty. – Contended that courts must develop the common law under section 39(2) to give effect to constitutional values protecting women from violence.
Respondents (Ministers):
– Denied that any specific legal duty existed between the state officials and the applicant. – Argued that imposing such liability would be inconsistent with existing common law principles and could expose the state to excessive claims.
– Maintained that constitutional rights do not automatically translate into private law duties enforceable through delictual liability.
Judgment / Final Decision
The Constitutional Court allowed the appeal, finding that both the High Court and SCA had erred by not considering the obligation under section 39(2) to develop the common law consistently with the Constitution. The Court held that there was sufficient evidence to justify a trial on whether the police and prosecutors’ failure to act was wrongful and negligent. It therefore set aside the absolution from the instance and remitted the case to the High Court for further proceedings.
Legal Reasoning / Ratio Decidendi
- The Court held that the Constitution is the supreme law, and all courts must ensure that the common law promotes the spirit, purport, and objects of the Bill of Rights.
- Section 7(2) of the Constitution places a positive duty on the state to respect, protect, promote, and fulfil the rights to life, dignity, and freedom and security of the person.
- The Court emphasised that public officials, including the police and prosecutors, can be held delictually liable where their negligent omissions infringe these rights.
- The Court rejected the idea of “public authority immunity” and confirmed that liability should be determined through a proportionality exercise balancing the interests of justice and public accountability.
- The common law of wrongfulness must therefore be developed considering constitutional values, especially the need to protect women from sexual and gender-based violence.
Conclusion / Observations
This case is a landmark in South African constitutional and delict law. It confirmed that the state may be held liable for the negligent failure of its officials to protect individuals from harm where constitutional rights are at stake. The judgment reinforced that the courts have a constitutional duty to develop the common law to reflect human dignity, equality, and freedom. It also sent a strong message that women’s safety and protection against gender based violence form part of the state’s constitutional obligations.
The Carmichele decision marked a turning point in aligning delictual liability with constitutional values. It transformed how South African courts approach wrongful omissions by public officials, illustrating that negligence by state actors can have constitutional implications. Importantly, the case affirmed that constitutional supremacy permeates private and public law, ensuring that every branch of government remains accountable for protecting fundamental rights. The decision also paved the way for subsequent judgments that integrated constitutional reasoning into private law, such as Minister of Safety and Security v Van Duivenboden and K v Minister of Safety and Security, where courts further expanded the duty of care of police officials.
By embedding constitutional principles into the law of delict, Carmichele strengthened the protection of vulnerable groups, particularly women, from systemic failures in law enforcement. The Court’s insistence on the development of the common law to reflect the spirit, purport, and objects of the Bill of Rights remains one of the most influential aspects of South African jurisprudence, reaffirming that the Constitution is not only a legal document but a living instrument of justice and social transformation.
Summary Note:
Carmichele v Minister of Safety and Security stands as a cornerstone of South African constitutional and delict law. The case established that omissions by state officials can constitute wrongful conduct when they fail to uphold their constitutional duties to protect individuals from harm and safeguard fundamental rights. By linking delictual liability with the Constitution, the Court reaffirmed that rights such as dignity, equality, life, and freedom must guide all aspects of law enforcement and public decision-making.
The judgment has since influenced numerous cases addressing the liability of state organs, setting a high standard for accountability and care in the exercise of public power. It also reinforced that gender-based violence is not only a social problem but a constitutional concern that demands proactive protection from the state. Overall, Carmichele transformed South African jurisprudence by ensuring that every act—or omission—of the state must withstand constitutional scrutiny and serve the broader pursuit of justice and human dignity.
REFERENCE(S):
Carmichele v Minister of Safety and Security and Minister of Justice and Constitutional Development 2001 (4) SA 938 (CC) (S. Afr.)
Constitution of the Republic of South Africa, 1996.
South African Legal Information Institute (SAFLII), Carmichele v Minister of Safety and Security (CCT48/00) Judgement (Aug. 16, 2001), available at:
https://www.saflii.org/za/cases/ZACC/2001/22.html
