Carmichele V Minister of Safety case

Case Title and Citation

Carmichele v Minister of Safety and Security (CCT 48/00) [2001] ZACC 22; 2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC); 2002 (1) SACR 79 (CC) (16 August 2001)

Court name and bench

• NAME OF THE COURT: Constitutional Court Of South Africa
• JUDGES- Ackerman and Goldstone JJ
• BENCH TYPE- Constitutional bench

Date of Judgement

• Heard on- 20 March 2001
• Decided on -16 August 2001

Parties involved

• APPLICANT- Alix Jean Carmichele
• FIRST RESPONDED- The Minister Of Safety And Security
• SECOND RESPONDED- The Minister Of Justice And Constitutional Development

Facts of the case

• The perpetrator, Francois Coetzee (Coetzee), was born in 1973. He had sexual issues since he was around ten years old, and in his early teens, he had molested his niece.
• On June 3, 1994, Coetzee, then 20 years old, committed an indecent act against Beverley Claassen, a 25-year-old acquaintance of his.
• He was imprisoned for eighteen months after being charged with attempted murder and housebreaking as a result of this incident.
• Less than 6 months later, Coetzee was charged with rape after attempting to rape and kill a 17-year-old following a dance at the Hornlee Hotel.
• After taking over the case, Detective Sergeant David Klein (Klein), the investigating officer, determined that there was no justification for refusing Coetzee bail and suggested that he be released on warning.
• Coetzee then appeared before Magistrate Von Bratt (the Magistrate) on a charge of rape and the prosecutor, Mr. G. Olivier (Olivier), did not present the magistrate with any information regarding Coetzee’s prior convictions or object to his release.
• This led to Coetzee’s unconditional release and a warning to return on March 17, 1995.
• On the morning of 6 August 1995, the applicant, Alix Jean Carmichele was brutally attacked and injured by Francois Coetzee (Coetzee).
• The attack happened at the residence of Julie Gosling (Gosling), the applicant’s former employer, in Noetzie, a small, remote seaside village about 12 kilometres outside of Knysna.
• Believing it to be legitimate, the applicant then filed a lawsuit for damages against the Minister of Safety and Security and the Minister of Justice and Constitutional Development in the Cape of Good Hope High Court (the High Court), not against Coetzee, the perpetrator.

Issue raised/ legal question

• The specific issue that was raised was whether the High Court and the Supreme Court of Appeal ought to broaden the concept of wrongfulness and liability based on the understanding of law of delict and in light of the constitutional duty to protect women.
• In particular, the court relied upon the constitutional obligation on all courts to develop the common law to align and promote the spirit, purport and objects of the Bill of Rights and especially in the field of delictual liability. [1]

Arguments of the parties

Applicant’s Argument

• The applicant’s claim is founded on delict, whereby the direct cause of the damages she suffered was the assault by Coetzee.
• Nonetheless, the applicant wishes to hold the respondents, police officer Klein, and prosecutors Louw and Oliver accountable for their alleged wrongdoings or omissions while they were acting within the parameters of their State employment. 
• She asserted that the public prosecutors at Knysna and members of the South African Police Service had negligently disregarded their legal obligation to her, which was to ensure her safety and dignity and to take action to stop Coetzee from hurting her. 
• She also stated that she had a constitutional right to life, the right to be respected and protected for her dignity, the right to freedom and security, and the right to personal privacy, all of which the relevant members of the South African Police Services and the prosecutors owed her. [2]
• She further emphasized that had the prosecutors and South African Police Service complied with their constitutional duty to ensure that the public’s right to security and protection was not infringed, then this incident would have never happened.
• With that being said, in order to succeed, the applicant would have to prove that:
• Klein or the prosecutors respectively owed a legal duty to the applicant to protect her.
• Klein or the prosecutors respectively acted in breach of such a duty and did so negligently.
• There was a causal connection between such negligent breach of the duty and the damage suffered by the applicant.

Respondent’s Argument

• The respondents argued that the police and prosecutors did not have a specific legal duty to protect Ms. Carmichele from the assault by Coetzee, especially since it was a private individual’s actions that caused the harm. 
• The respondents contended that the police and prosecutors did not act wrongfully or negligently in their handling of Coetzee, as they did not believe there was sufficient evidence to establish that the police or prosecutors were aware of a specific threat to Ms. Carmichele or that their actions were a direct cause of her injuries. 
• Additionally, the respondents contended that they were not required by the constitution to advance the common law of delict in a manner that would hold them accountable for the deeds of a third party such as Coetzee. 
• The respondents primarily emphasized the lack of a clear legal or constitutional obligation as well as the dearth of proof to back up the allegation of improper behaviour on their part.

Final decision

• While taking into consideration of the necessary provisions, it was contended for the applicant that the common law duty to act and the common law definition of what constitutes liability should be developed in the light of the provisions and the rights enriched in the Bill of Rights in the Interim Constitution (IC).
• The court therefore found positive obligations on members of the police force both in the Interim Constitution (IC) and the Police Act.
• The court emphasized the importance of interpreting the Bill of Rights and holding the state accountable for failing to fulfil its constitutional obligations. 
• As a result, the court decided to broaden the definition of state liability beyond the conventional vicarious liability, especially in cases where state officials had an obligation to take action to stop harm.

Ratio decidendi (reasoning)

• The court provided that section 173 of the Constitution gives to all Higher Courts, including this Court, the inherent power to develop the common law, taking into account the interests of justice.[3]
• The court further considered section 7 of the Constitution, whereby the Bill of Rights enshrines the rights of all people in South Africa, and obliges the state to respect, promote and fulfil these rights. [4]
• As provided for in section 39(2), which was additionally considered, directs courts to interpret and develop legislation, common law, and customary law in a manner that promotes the spirit, purport, and objects of the Bill of Rights.

The spirit and purport of the Bill of Rights include principles such as:

• Equality – Every person shall have the right to equality before the law and to equal protection of the law.
• Life- Every person shall have the right to life.
• Human Dignity- Every person shall have the right to respect for and protection of his or her dignity.
• Freedom and security of person- Every person shall have the right to freedom and security of the person, which shall include the right not to be detained without trial.
• Another reason for deciding to develop the common law when it came to delictual liability cited from the Du Plessis v De Kler, where it was provided that Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country.[5]
• The court further provided that there is a duty imposed on the state and all of its organs not to perform any act that infringes these rights.
• In some circumstances there would also be a positive component which obliges the state and its organs to provide appropriate protection to everyone through laws and structures designed to afford such protection.
• The court held that in this case, Coetzee was in custody and Klein as a police investigator and the relevant prosecutors had a clear duty to bring to the attention of the prosecutor any factors known to him relevant to the exercise by the magistrate of his discretion to admit Coetzee to bail.
• Failure to adhere to these duties resulted to the infringement of Charmichele’s constitutional rights, thus the decision to develop the common law principle of delictual liability to include the state.

Conclusion

• The Carmichele v Minister of Safety and Security and Minister of Justice case represents a landmark decision in the development of South African constitutional and delictual law.
• The Constitutional Court made it clear that the state, through its organs such as the police and the prosecuting authority, bears a positive constitutional obligation to protect individuals from foreseeable harm, especially in the context of gender-based violence.
• The court further held that the omissions of the police authority and prosecutor were not only negligent but also infringed on Carmichele’s fundamental rights to dignity, freedom, security, and life, as protected by the Interim Constitution.
• Importantly, the court used this case to affirm that the common law must be developed in accordance with the Constitution, particularly section 39(2), which mandates that all law be interpreted and developed to promote the values enshrined in the Bill of Rights.
• This judgment lastly expanded the traditional understanding of delictual liability by recognising the state’s accountability not only through vicarious liability but also through its own failure to act where there was a clear legal duty to do so.

Reference(S):

[1] Section 39(2) of the Constitution of the Republic of South Africa, 1996.

[2] Chapter 2: Bill of Rights- section 10, 11 and 12

[3] Constitution of the Republic of South Africa, 1996. Section 173

[4] Constitution of the Republic of South Africa, 1996, section 7

[5] Du Plessis and Others v De Klerk and Another [1996] ZACC 10; 1996 (3) SA 850 (CC); 1996 (5) BCLR 658 (CC)