Authored By: Boitumelo Masia
Emeris
Case Citation and Basic Information
Full case name: Alix Jean Carmichele v The Minister of Safety and Security and The Minister of Justice and Constitutional Development
Citation: CCT 48/00 (2001)
Judges: Laurie Ackerman and Richard Goldstone
Date of Decision: 16 August 2001
Court: Constitutional Court of South Africa
Introduction
In this case the legal area is the constitutional law, law of delict and state liability for omissions. The court showed concerns in whether the police where wrong and negligent for not arresting Coetzee and was the magistrate wrong for granting him bail. Whether the courts had a constitutional obligation to develop the common law of delict to reflect the state’s duty to prevent gender-based violence. The “We The People South Africa” article has deemed this case a landmark case because it has established state’s legal duty to protect individuals from violent crime, mandated courts to actively develop the common law using the Constitution, and held the police and prosecutors civilly liable for negligence. It is noteworthy because they held the state liable for police omission, ruled the court to develop common law of delict and recognised that woman are to be protected from violent crimes.
Facts of the Case
The applicant (Alix Jean Carmichele) was viciously attacked on the 6th of August 1995 by Francois Coetzee at Noetzie near Knysna. Coetzee was convicted for multiple crimes previously and was not accounted for them, which resulted in the applicant being injured by him. The applicant claimed that the members of the South African Police Service and the public prosecutors failed to protect her and negligently failed to comply with the legal duty they owed to her to take steps that would prevent Coetzee from harming her, she had instituted proceedings in the Cape of Good Hope High Court (the High Court) for damages against the Minister of Safety and Security and the Minister of Justice and Constitutional Development. The High Court granted an order of absolution from the instance in favour of the respondents with costs due to the court not finding evidence. With the leave of the High Court the applicant appealed to the Supreme Court of Appeal. The appeal was dismissed with costs. All this resulted in the applicant seeking special leave to appeal to the Constitutional Court (CC) which was granted on the basis of the case S v Boesak. The Constitutional Court went further in investigating the matter and ruled the judges to develop the common law. The applicant’s claims are found in delict, however the applicant held the respondents liable of the wrongfulness and omissions of the police and the prosecutors. In order to succeed the applicant would have to establish at the trial that:
(a) The police or the prosecutors respectively owed a legal duty to the applicant to protect her;
(b) Klein or the prosecutors respectively acted in breach of such a duty and did so negligently;
(c) there was a causal connection between such negligent breach of the duty and the damage suffered by the applicant.
Legal Issues
The Constitutional Court had to decide on several important issues:
Whether the police and the prosecutors were negligent in releasing a dangerous offender.
Whether the police and the prosecutors are liable to protect a member of the public.
Whether the court is obliged by the constitution to develop the common law of delict.
Arguments Presented
Applicant (Alix Jean Carmichele)
The applicant stated that the members of the South African Police Serves and the prosecutors owed her a duty to: “ensure that she enjoyed her constitutional rights of inter alia the right to life, the right to respect for and protection of her dignity, the right to freedom and security, the right to personal privacy and the right to freedom of movement.”
The counsel of the applicant stated that both the High Court and SCA erred in not applying the relevant provisions, the counsel further contended for the applicant that the common law duty to act should be developed in the light of the provisions of the Bill of Rights in the interim Constitution (IC), the counsel counted on the following provisions of the IC: Equality Life. Human dignity.
Freedom and security of the person
Privacy
The counsel counted on the provision of section 215 of the IC which reads:
The powers and functions of the Service shall be
the prevention of crime;
the investigation of any offence or alleged offence;
the maintenance of law and order; and
the preservation of the internal security of the Republic.”
Respondents (Minister of Safety and Security and Another)
The respondents argued that they were working rounding the due restriction of criminal procedure. It is stated in the case that Despite the failure by the applicant to rely directly upon the provisions of either section 35(3) of the IC or section 39(2) of the Constitution in the High Court and SCA, counsel for the respondent did not object to this issue being raised in this Court. If covered by the pleadings, and in the absence of unfairness, parties are ordinarily not precluded from raising new legal arguments on appeal. In constitutional matters, however, courts have an interest in a constitutional issue being raised timeously. The relevance of this omission in the present case is dealt with later in this judgment.
Court’s Reasoning and Analysis
The court came with this ruling to ensure that they get a breaking point towards the case, the ruling of common law of delict under Section 39(2) of the constitution. They relied on multiple cases such as repeating the dictum of lacobucci J in R v Salituro and Government of the Republic of South Africa v Basdeo and Another 1996 (1) 355 (A) at 367E–H. In this case the applicant had set out multiple arguments but the court agreed to one which is the police and prosecutors do owe the applicant legal duty, due to the meaner in which the applicant was injured and the previous crimes Coetzee had.
Judgment and Ration Decidendi
The Decision: The CC decided that the courts are obliged to develop the common law of delict to align with the Bill of Rights under Section 39(2), the court established that the police can be held liable for damages caused by negligent and unlawful omission. It further upholds a ruling that the authorities are obliged to protect the public members, to safe guard them and have their rights of life, freedom, security. The case was upheld by the CC and granted relief by upholding, setting aside the previous dismissal orders and referring the case back to the High Court for trial to continue.
Ratio Decidendi: The court determined that the authorities do have a legal duty to protect the public members from known and foreseeable violent crimes. The ratio decidendi is that the authorities are a link that protects us and helps us from crimes.
Critical Analysis
Significance of the Decision
The development towards the law is that South African courts have established they have constitutional rights to actively develop the common law of delict to promote the Bill of Rights. This resolves previous uncertain legal questions and aligns with domestic laws.
Implications and Impact
The decision made by the court for this case to go back to the high court for a trial was good decision because it worked in favour of the applicant, Coetzee was arrested and the authorities were held liable for their incompetence.
Critical Evaluation
It lies in its integration of the Bill of Rights into private law, its enforcement of positive state obligations, and its clear mandate to evolve the common law, it forced and rejected the old ways of the private law. The weakness of this case lies in the lower courts, how they handle procedures. The controversies that were attracted from this case is that public members do not trust the authorities, even with gender base violence rising women would rather stay in violent spaces then report to the authorities.
Conclusion
The landmark of this has changed the way the law was back in the days. It has reshaped the lower courts and how they handle procedures. The key takeaway is that the is always a way to move around the law and that law is forever changing with time. what is remembered in this case is that the state/authorities can be held liable for negligence. There are some grey areas left unsolved by the case which are South African courts always rely on common law, all this could have been prevented had the lower courts handled the trial and not put personal issues to it.
Reference(S):
Cases
Carmichele v Minister of Safety and Security and Another [2001] CCT48/00
Cole v Government of the Union of S.A. [1910] AD 263
Government of the Republic of South Africa v Basdeo and Another 1996 (1) 355 (A) at 367EH
S v Boesak [2001] CC BCLR 36
Online Article
We The People South Africa, ‘A Duty to Protect Women’ (We The People South Africa, 2017
