Carmichele v. Minister of Safety and Security

Ms. Carmichele stayed at a friend’s place where Coetzee, a man who had previous history of violence and sexual misconduct, stalked her and walked around the house. She and her friend reported Coetzee’s abnormal behavior to the local police station but the police claimed that they could do nothing about him. Eventually one day when Ms. Carmichele stayed alone in the house, Coetzee broke into it and cruelly attacked her, including punching her head, breaking her arm and stabbing her left breast.
Coetzee was convicted of attempted murder and housebreaking in the Knysna regional court and was sentenced to an effective term of imprisonment of twelve-and-a-half years.  She instituted proceedings in the Cape of Good Hope High Court for damages against the Minister for Safety and Security and the Minister of Justice and Constitutional Development. She claimed that members of the South African Police Service and the public prosecutors at Knysna had negligently failed to comply with a legal duty they owed to her to take steps to prevent Coetzee from causing her harm. She based her accusation on the previous and repeated criminal behaviour of the accused and the failure in the duty of care of the police and prosecutor. The High Court found no evidence of responsibility of the police or prosecutors. She subsequently appealed to the Supreme Court of Appeal but the appeal was dismissed. She finally sought special leave to appeal to the Constitutional Court.

The Court based its decision on three main arguments: first, it is a duty of the courts to develop the Common Law taking into account the interests of justice. In her particulars of claim, the applicant contended that the relevant members of the South African Police Services 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."

In deciding whether a duty of care existed in this case, the court looked to the relevant statutory provisions that imposed positive obligations on members of the police force to preserve freedom and security. The court noted that in addressing such obligations in relation to dignity and the freedom and security of the person, "few things can be more important to women than freedom from the threat of sexual violence." The court also recalled South Africa's duty under international law to prohibit all gender-based discrimination. The court noted that the police are one of the primary agencies of the state responsible for the protection of the public in general, and women in particular, against the violation of their fundamental rights by perpetrators of violent crime. The court found that the police, therefore, had a duty toward the plaintiff and that under the facts of the case, had breached that duty.

The Constitutional Court remanded the case matters back to the High Court for it to continue with the trial.

This is relevant to applications for absolution from the instance in trials where the court is asked to develop the common law in terms of section 39(2) of the Constitution. There may be cases where there is clearly no merit in the submission that the common law should be developed to provide relief to the plaintiff. In such circumstances absolution should be granted. But where the factual situation is complex and the legal position uncertain, the interests of justice will often better be served by the exercise of the discretion that the trial judge has to refuse absolution. If this is done, the facts on which the decision has to be made can be determined after hearing all the evidence, and the decision can be given in the light of all the circumstances of the case, with due regard to all relevant factors. This has the merit of avoiding the determination of issues on the basis of what might prove to be hypothetical facts. It also ensures that there is a full and complete record on which the dispute can be determined with finality not only by the trial court, but by an appeal court required to deal with the matter. This may curtail rather than prolong litigation.

We are satisfied that the case for the appellant has sufficient merit to require careful consideration to be given to the complex legal issues that it raises. If this Court were to decide these issues it would have to do so in circumstances where for all practical purposes it would be acting as a court of first instance in relation to issues of fundamental importance concerning the development of the common law of delict.

For the reasons that have already been given that is not desirable. Moreover, even if the applicant were to be successful that would not put an end to the litigation. The facts would still have to be determined and they might prove to be materially different from those evaluated at the absolution stage. It is not desirable that a case as complex as this should be dealt with on the basis of what the facts might be rather than what they are.