Authored By: Lesego Motloenya
Boston City Campus Business College
Case Name: CARMICHELE v MINISTER OF SAFETY AND SECURITY 2001 (4) SA 938 (CC); [2001] ZACC 22.
Constitutional Court
Judgement Date: 16/08/2001
PARTIES INVOLVED
The appellant in this case is a private citizen named Alix Carmichele, who was the victim of a violent assault and attempted murder. She filed a civil claim for damages against the State, alleging that the police and prosecution had violated her fundamental rights to life, dignity, and personal protection by failing to stop the release of a dangerous accused individual. Citing their official positions as state representatives, the defendants were the Minister of Safety and Security and the Minister of Justice and Constitutional Development. Members of the South African Police Service and the prosecuting authorities were sued for their alleged wrongdoing and negligence in failing to present pertinent evidence to the court and to take appropriate action to stop the release of a violent criminal who was known to have committed crimes.
FACTS OF THE CASE
In August 1995, Coetzee viciously attacked and assaulted Alix Carmichele, the appellant in this case. This was not the first time he had attacked women. Coetzee was on warning at the time of the incident, awaiting trial for rape and the attempted murder of another woman. Coetzee was found guilty of indecent assault and housebreaking after committing an indecent act on his acquaintance. For the indecent assault charge, he was thus given an 18-month prison sentence with a four-year reservation and an R600 fine. Coetzee tried to rape and kill ET, who was 17 at the time of the event, in less than six months. Detective Klein stated that there was no justification for denying Coetzee bail when he appeared in court and suggested that he be released on warning. Coetzee was charged with rape and appeared before Magistrate Von Bratt. Mr. G. Olivier (Olivier), the prosecutor, did not present the magistrate with any information on Coetzee’s prior conviction or object to Coetzee’s release on his own discretion. On March 17, 1995, Coetzee was fully discharged and encouraged to make another appearance. On September 11, 1995, the trial for Coetzee’s alleged rape of ET began. Coetzee denied rape but said that he had beaten ET. He was subsequently given a seven-year prison sentence after being found guilty of attempted rape. He was found guilty of attempted murder and housebreaking on December 13, 1995, in addition to being prosecuted for the attack on the applicant. All things considered, he received an effective sentence of 12.5 years in jail.
LEGAL ISSUES
The main issue in this case was the development of the common law. Whether courts are constitutionally obliged under section 39(2) of the Constitution to develop common law according to the Bill of Rights?
- Whether the police and prosecutors owed a legal duty to the applicant to act so as to prevent harm caused by Coetzee?
ARGUMENTS OF THE PARTIES
The appellant sued the Minister of Safety and Security and the Minister of Justice, alleging that the police and prosecutors negligently failed to protect her. The appellant claimed that the prosecutors owed her protection as their legal duty to ensure that she enjoyed her constitutional rights, among other things, 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. In contrast, the defendant argued that any duty owed by police and prosecutors was owed to the public at large rather than to a specific individual. There was obviously no absolute duty on prosecutors to oppose bail in all cases. A prosecutor had a public duty to oppose bail in appropriate cases, but a breach of this duty did not necessarily constitute a legally actionable omission at the instance of any individual member of the public.
JUDGEMENT/ FINAL DECISION
The Constitutional Court upheld the appeal because the lower courts misguided themselves by failing to take into account their constitutional duty under section 39(2). The Constitutional Court therefore recommended that the Supreme Court of Appeal’s ruling overturn the absolution in order to send the case to the High Court for consideration of the merits, negligence, and causation.
LEGAL REASONING/ RATIO DECIDENDI
The inherent power to develop the common law while considering the interests of justice is granted to all higher courts, including this court, by Section 173 of the Constitution[i]. In this case, the High Court and the SCA were asked to develop the common law, not on the basis of the Constitution, because of the peculiarity of the applicant’s cause of action. Common law has always needed improvement, particularly in the area of delictual liability. Where a court develops the common law, the provisions of section 39(2) of the Constitution oblige it to have regard to the spirit, purport and objects of the Bill of Rights. The Constitutional Court held that the obligation of courts to develop the common law, in the context of section 39(2) objectives, is not purely discretionary. On the contrary, it is implicit in section 39(2) read with section 173, that where the common law as it stands is deficient in promoting the section 39(2) objectives, the courts are under a general obligation to develop it appropriately. Courts have a positive constitutional duty under section 39(2) to develop the common law so that it promotes the spirit, purport and objects of the Bill of Rights. Furthermore, the Constitutional Court also held that a court must, in every case involving the common law, undertake an independent assessment to determine whether the common law requires development and, if so, how it should be developed under section 39(2). There may also be circumstances where a court is obliged to raise the issue on its own initiative and to require full argument from the parties. Section 39(2) of the Constitution states that: “When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”[ii]
Section 39(2) of the Constitution. The legal reasoning in the present case was the development of common law in line with the Bill of Rights. Under the Constitution, there can be no question that the obligation to develop the common law with due regard to the spirit, purport, and objects of the Bill of Rights is an obligation that falls on all our courts, including the High Court and the Supreme Court of Appeal.
According to the Constitutional Court, the objective value system aims to create a society founded on equality, freedom, and human dignity as well as on open, accountable, and transparent governmental institutions. This normative system’s content is not solely dependent on abstract philosophical analysis; rather, it is based on the knowledge that the constitution requires the creation of a society that departs clearly and decisively from the past and that institutions that functioned prior to our constitutional dispensation must be given a new operational vision grounded in the fundamental principles of our system. A significant advancement in South African constitutional and delictual jurisprudence can be seen in the ruling in Carmichele v. Minister of Safety and Security. Its greatest contribution is confirming that courts have a constitutional duty to develop common law in line with the spirit, purport, and objects of the Bill of Rights, especially in cases where the State’s inaction causes vulnerable people to suffer grave harm. The strict, pre-constitutional interpretation of wrongfulness and legal obligation, which viewed state officials’ omissions as exceptional and infrequently actionable, was rightly rejected by the Constitutional Court.
CONCLUSION / OBSERVATIONS
In conclusion, this case draws attention to the need for legislative reform on a larger scale. The Court ruled that although the legislature should be the primary force behind law reform, courts had a general obligation to advance common law when it diverged from the spirit, purport and objects of the fundamental rights provisions. Reliance on delictual litigation as a corrective mechanism would be lessened by clear statutory guidelines governing bail decisions, risk assessments of violent offenders, and mandatory disclosure obligations for prosecutors. Additionally, to guarantee proactive protection of vulnerable groups, particularly women, institutional reform within the criminal justice system is required. Carmichele is a groundbreaking and revolutionary ruling that correctly constitutionalises the law of delicts. Its contribution to accountability, gender justice, and the evolution of South African common law is significant and long-lasting, despite criticism of its cautious remedial approach and lack of specific doctrinal guidance.
REFERENCE/ ENDNOTES
[i] Section 173 provides:
“The Constitutional Court, the Supreme Court of Appeal and the High Courts have the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice.
[ii] Section 39(2) of the Constitution
