Carmichele v Min S S - case law PDF

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CARMICHELE v MINISTER OF SAFETY AND SECURITY AND ANOTHER (CENTRE FOR APPLIED LEGAL STUDIES INTERVENING) 2001 (4) SA 938 (CC) 2001 (4) SA p938

Citation

2001 (4) SA 938 (CC)

Case No

48/00

Court

Constitutional Court

Judge

Chaskalson P , Ackermann J , Goldstone J , Kriegler J , Madala J , Mokgoro J , Ngcobo J , Sachs J , Yacoob J , Madlanga AJ and Somyalo AJ

Heard

March 20, 2001

Judgment

August 16, 2001

Counsel

W H Trengove SC (with A M Breitenbach) for the applicant. J A le Roux SC (with R Jaga) for the respondents. J Kentridge for the amicus curiae.

Annotations Link to Case Annotations E

Flynote : Sleutelwoorde Constitutional law - Common law - Development of - Duty of Courts to develop common law 'in accordance with spirit, F purport and objects of Bill of Rights' as intended in s 39(2) of Constitution of the Republic of South Africa Act 108 of 1996 - Where common law deficient in promoting objectives of s 39(2), courts under general obligation to G develop it appropriately Existence of said obligation depending on circumstances - Although independent enquiry not required in each and every case, Court may have to raise issue meru moto where necessary Investigation under s 39(2) consisting of two stages, (1) enquiry as to whether common law requiring development in accordance with objectives of s 39(2) and, if so, (2) enquiry as to H how such development to take place in order to meet objectives of s 39(2) - Development of common law under s 39(2) requiring close interaction between, on one hand, High Courts and Supreme Court of Appeal and, on other hand, Constitutional Court, so that latter may have benefit of expertise of former in common-law matters, particularly I as to whether common law should or should not be developed in particular case. Constitutional practice - Courts - Development of common law - Approach of Courts to applications for absolution from the instance in cases where required to develop common law in terms of s 39(2) of Constitution of the Republic of South Africa Act 108 of 1996 - Absolution to be granted J 2001 (4) SA p939

where clearly no merit in submission that common law should be developed to provide relief to plaintiff - However, where factual A situation complex and legal position uncertain, preferable for Court to refuse absolution. Negligence - Liability for - Duty of care - When it arises - Duty of State and its organs to protect members of public - Existence of - In general, wrongfulness of omissions in delictual actions to be determined by weighing and striking of balance between interests of parties and B conflicting interests of community - This 'proportionality' test to be conducted in accordance with 'spirit, purport and objects of Bill of Rights' as intended in s 39(2) of Constitution of the Republic of South Africa Act 108 of 1996 and relevant factors to be weighed in context of

Constitutional State founded on dignity, equality and freedom - Since Bill of Rights binding State and its organs (s 8(1) of C Constitution), duty imposed on them not to perform any act infringing such rights - In certain circumstances positive component arising obliging State and organs to provide appropriate protection to everyone through laws and structures designed to afford such protection - No ground for immunity of public officials from delictual claims by public D or for drawing distinction between actions and omissions by such officials - Limits of delictual liability to be established by striking balance between interests of parties and conflicting interests of community, and by requirements of foreseeability and proximity. Criminal procedure - The prosecution - Conduct of - Duty to carry out public functions independently and in interests of public - Courts E to take into account pressures under which prosecutors work and not to use hindsight as basis for unfair criticism. Criminal procedure - Bail - Application for - Duty of prosecutor - Prosecutor to place before court any information relevant to court's exercise of discretion with regard to granting or refusal of bail - Semble: Prosecutor who has information that accused violent, F has grudge against complainant and has threatened to do him or her violence if released on bail liable for consequences of negligent failure to bring such information to attention of court.

Headnote : Kopnota During August 1995 the applicant, a 28-year-old woman, was brutally assaulted by one C at the home of a Mrs G, situated in a small and G secluded village on the Cape south coast. C had previously, during September 1994, been convicted on charges of housebreaking and indecent assault for which he had been sentenced to a fine and suspended periods of imprisonment. At the time of the attack on the applicant C was, in addition, facing a charge of rape. C had first appeared on this charge in a magistrate's court on 5 March 1995, when he was released by H the magistrate on his own recognisance on the recommendation of the investigating officer, one K. A few days after C's release from custody G was informed of the rape and of C's previous conviction for indecent assault. She asked the police to see to it that C was kept in custody pending his trial. The officer in question advised G to discuss the matter with the public prosecutor, who in turn told G that nothing I could be done unless C committed another offence. Shortly thereafter, and subsequent to a suicide attempt and an interview with the prosecutor that revealed serious sexual deviation, C was re-arrested and sent to a psychiatric hospital for observation. Upon his return in April 1995 he again appeared in the magistrate's court. According to the report from the hospital C was capable of understanding the proceedings making a J 2001 (4) SA p940

proper defence, and had also been mentally capable at the time of the rape. The report did not declare C to be a danger to A society or recommend that he be kept in custody, and he was, after having pleaded not guilty, re-released by the magistrate on his own recognisance pending a decision by the Attorney-General on whether the case should be tried in the High Court or the regional court. The Attorney-General, who had been in possession of the referral documents (which reflected the seriousness of the rape and the extent of C's B sexual deviation), had not instructed the prosecutor to oppose bail, with the result that C's release was not opposed. After his release the applicant had spotted C snooping around G's house, where she frequently stayed. G once again spoke to the senior prosecutor, who again informed her that she was powerless to do anything about C. A few days later C attacked the applicant at G's house, seriously wounding her. The applicant brought a delictual action in the High Court for C damages against the two respondents (the second respondent being the Minister of Justice) for the injuries she had sustained during the attack. The applicant's case was that the members of the police as well as the public prosecutors involved had owed her a legal duty to act in order to prevent C from causing her harm and that they had negligently failed to comply therewith. The

High Court held that D there was no evidence upon which a court could reasonably find that the said duty had existed and that the police or public prosecutors had acted wrongfully. It accordingly ordered absolution from the instance. The applicant appealed to the Supreme Court of Appeal (the SCA), but the appeal was dismissed with costs. The applicant then launched the instant application for leave to appeal to the Constitutional Court (the CC). In considering the application, the CC also heard argument on E the merits of the appeal. Before the CC the applicant contended that the police and prosecutors involved had owed her a duty to safeguard her constitutional right to life, the respect for and protection of her dignity, freedom and security and privacy. It was further submitted that the police and prosecution services were among the primary agencies of State responsible for the discharge of its constitutional F duty to protect the public in general and women in particular against violent crime, and that, on the facts of the instant case, the applicant was entitled to damages in delict for their failure to do so. She submitted that the High Court and the SCA had erred in not applying the relevant provisions of the (interim) Constitution of the Republic of South Africa Act 200 of 1993 in determining whether the police and G prosecutors had been obliged to protect her. Counsel for the applicant relied in particular on the constitutional obligation to 'develop the common law' with due regard to the 'spirit, purport and objects' of the Bill of Rights as intended in s 35(3) of the interim Constitution and s 39(2) of the (new) Constitution of the Republic of South Africa Act 108 of 1996. Neither the High Court nor the SCA had had regard to the relevant provisions of the Bill of Rights or to ss 35(3)/39(2). H Section 8(1) of the new Constitution provided that the 'Bill of Rights applies to all law, and binds the Legislature, the Executive, the Judiciary and all organs of State'; s 39(2) provided that 'when developing the common law, every court . . . must promote the spirit, purport and objects of the Bill of Rights'; and s 173 provided that the 'Constitutional Court, Supreme Court of Appeal and High Courts I have the inherent power to . . . develop the common law, taking into account the interests of justice'. Held , that since all Courts were constitutionally obliged to promote the spirit, purport and objects of the Bill of Rights when developing the common law, they were compelled to eliminate any common-law deviation from these aims. The proceedings in the High Court and SCA took place after the new J 2001 (4) SA p941

Constitution had come into operation and both Courts had, in assuming that the preconstitutional test for A wrongfulness of omissions in delictual actions should be applied, overlooked the demands of s 39(2) of the Constitution. (Paragraphs [33] and [37] at 953F/G - 954A/B and 955B - C/D.) Held , further, that obligation on the Courts to develop the common law in the light of the objectives set out in s 39(2) was not purely discretionary: it was implicit in s 39(2) read with s 173 that, if the common law was deficient in promoting these B objectives, the Courts were under a general obligation to develop it appropriately. This did not, however, mean that the Courts were obliged to embark on an independent investigation of the need to develop the common law in each and every case, but in certain circumstances they might need to raise the matter meru motu and require full argument from the parties. Where, as in the present case, it was clear that the common law had to be developed beyond existing C precedent, there were two stages to the enquiry the Court was obliged to undertake: it had to consider, first, whether the existing common law required development in

accordance with the objectives of s 39(2) and, if so, how this development was to take place in order to meet the objectives of s 39(2). In the present case neither the High Court nor the SCA had embarked on either stage of this enquiry, with the result that the CC did not have the benefit of any assistance from either D Court on either stage of the above enquiry. (Paragraphs [39] - [41] at 955F/G - 956D.) Held , further, that the exercise in proportionality previously conducted by the Courts in order to determine the duty to act in delictual cases (in which the interests of the parties and the conflicting interests of the community were weighed and balanced) was consistent with the Bill of Rights, but that this exercise now had to E be carried out in accordance with the spirit, purport and objects of the Bill of Rights, and the relevant factors weighed in the context of a constitutional State founded on dignity, equality and freedom and in which the government had positive duties to promote and uphold such values. Both Constitutions entrenched the rights to life, human dignity, and freedom and security of the person in their respective Bills of Rights, and both also provided that the Bill of Rights applied F to the State and its organs (ss 7(1) and 8(1) respectively). There was thus a duty on the State and its organs not to perform any act that infringed these rights, and in some circumstances there would also be a positive component obliging the State and its organs to provide appropriate protection to everyone through laws and structures designed to afford such protection - the Constitution did not draw a distinction G between action and omission in this regard. (Paragraphs [43] - [45] at 957A/B - 958C.) Held , further, that fears about the chilling effect such delictual liability for a failure by the State to take positive action to prevent harm might have on the proper exercise of their duties by public servants were sufficiently met by the proportionality exercise referred to above and also by the requirements of foreseeability and H proximity. Liability had to be determined on the basis of the law and its application to the facts of the case, and not, as was the case in some foreign jurisdictions, on the ground of a public interest immunity granted to public authorities against such claims. (Paragraph [49] at 959H - 960B/C.) Held , further, as to the development of the common law under s 39(2): what was required was not just a proper appreciation of the I Constitution and its objective, normative value system, but also an understanding of the common law. For the CC to be able to develop the common law in terms of s 39(2), it required the input of the High Courts and the SCA, with their expertise in this area of the law, for not only had the common law to be developed in a way which met the objectives of s 39(2), but this had to be J 2001 (4) SA p942

done in a way which was most appropriate for the common law. A close interaction, on the one hand, A the HCs and SCA and, on the other hand, the CC, was thus essential. (Paragraph [55] at 961H - 962B/C.) Held , further, that there were notionally different ways of developing the common law in the area under consideration in the present case, of which not all would necessarily be equally beneficial to the common law. Without the benefit of a fully considered judgment from either the SCA or the High Court as to whether one B solution would be better than the other from the perspective of the common law, the CC and the litigants themselves were at a grave disadvantage. (Paragraphs [56] [59] at 962C - 963D/E, paraphrased.)

Held , further, that the High Court had, possibly because of the way the case was argued before it, misdirected itself in relation to the constitutional requirements of s 39(2). In the present case it was possible to make the order that Court ought to have made without C pre-empting decisions of the High Court or the SCA as to whether the circumstances were such as to call for the law of delict to be developed and, if so, how this had to be done. To that end the issues relevant to legal liability in the context of the evidence given at the trial and the provisions of the Constitution had to be considered. (Paragraph [60] at 963F - H.) D Held , further, as to the conduct of the investigating officer (K), that, although the issue here was whether, given the facts of the case and the constitutional protection to which the applicant was entitled, K's advice to the prosecutor that C be released on his own recognisance had been unlawful, the SCA did not consider the conduct of K on 5 March 1995, but had dealt with the case on the E basis only of the prosecutor's failure to oppose bail on 18 April 1995, after C's return from the psychiatric hospital. The SCA's conclusion that the magistrate could at that hearing have withdrawn the previous order releasing C on warning was not challenged in the CC, and it was best to deal with the matter on the same basis the SCA did. (Paragraphs [67] and [70] - [71] at 966C and 966H - 967C/D.) Held , further, as to the case against the prosecutors, that, although the interim Constitution did not contain any provisions F dealing with prosecutors, prosecutors had always owed a duty to carry out their public functions independently and in the interests of the public. Although the consideration of bail was pre-eminently a matter for the presiding judicial officer, the information available to him could but come from the prosecutor. He or she had a duty to place before the court any information relevant to the exercise of the G discretion with regard to the granting or refusal of bail. Courts, however, had to take into account the pressures under which prosecutors worked, and care had to be taken not to use hindsight as a basis for unfair criticism. That said, each case depended on its facts, and there was no reason in principle why a prosecutor who had reliable information, for example, that an accused person was violent, had a grudge against the complainant and had threatened to do violence to her H if released on bail, should not be held liable for the consequences of a negligent failure to bring such information to the attention of the court. If such negligence resulted in the release of an accused person who then proceeded to implement the threats made, a strong case could be made out for holding the prosecutor liable for the damages suffered I by the complainant. (Paragraphs [72] - [74] at 967D - 968F/G.) Held , further, as to causation, that the evidence justified the conclusion that, had bail been opposed and all relevant information pertaining to C's background and sexual problems placed before the magistrate, it might have been refused, and this finding was sufficient to put the respondents on their defence in relation to this issue. (Paragraph [77] at 969G - H.) J 2001 (4) SA p943

Held , further, as to whether the Court had to itself decide whether the law of delict ought to be developed to afford the A applicant the right to claim damages if the police and prosecutors had been negligent, or whether the matter had to be left for the High Court or SCA to determine, that the case for the applicant had sufficient merit to require careful consideration to be given to the complex legal issues raised. Although absolution should be granted in cases in which there was no merit in the

submission that the common law should be B developed to provide relief to the plaintiff, in complex cases such as the present the interests of justice were better served by ordering the trial Judge to refuse absolution. This had the merit of avoiding the determination of issues on the basis of what might prove to be hypothetical facts and also ensured that the dispute would be determined with finality by the trial Court (and the appeal Court in the event of an appeal) on a full and complete record. (Paragraphs C [80] - [81] at 970B - 971C.) Held , accordingly, that the appropriate order was to uphold the appeal, to set aside the orders of the High Court and the SCA and to refer the matter back to the High Court for it to continue with the trial. (Paragraph [83] at 971D - D/E.)

Cases Considered Annotations Reported cases

D

39 BVerfGE 1: dictum at 41 approved Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A) : referred to Amod v Multilateral Motor Vehicle Accidents Fund 1998 (4) SA 753 (CC) (1998 (10) BCLR 1207): dictum in para E [22] applied and dictum in para [33] approved Ardecor (Pty) Ltd v Quality Caterers (Pty) Ltd and Others 1978 (3) SA 1073 (N) : dictum at 1076G - 1077C applied Bain v The Queen (1992) 87 DLR (4th) 449: dictum at 463 - 5 approved Barrett v Enfield London Borough Council [1999] 3 All ER 193 (HL): considered

F

Boucher v The Queen (1955) 110 CCC 263 (SCC): dictum at 270 approved Brink v Kitshoff NO 1996 (4) SA 197 (CC) (1996 (6) BCLR 752): referred to Bruce and Another v Fleecytex Johannesburg CC and Others 1998 (2) SA 1143 (CC) (1998 (4) BCLR 415): dictum in para [8] ap...