Minister of Safety and Security and Another v Carmichele (533/02) [2003] ZASCA 117; [2003] 4 All SA 565 (SCA) (14 November 2003)

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[2003] ZASCA 117
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Minister of Safety and Security and Another v Carmichele (533/02) [2003] ZASCA 117; [2003] 4 All SA 565 (SCA); 2004 (2) BCLR 133 (SCA); 2004 (3) SA 305 (SCA) (14 November 2003)

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Reportable
Case No 533/02
In the matter
between:
THE MINISTER OF SAFETY
AND SECURITY First
Appellant
THE MINISTER OF JUSTICE
Second Appellant
and
ALIX JEAN
CARMICHELE Respondent
Coram: HARMS, STREICHER, FARLAM, NAVSA AND LEWIS JJA
Heard: 3 NOVEMBER 2003
Delivered: 14 NOVEMBER 2003
Subject: Delict – liability of State for negligence of police and
prosecutors for a failure to oppose bail – accused thereafter

attempted to murder plaintiff
J U D G M E N T
HARMS JA/
HARMS
JA:
[1] This appeal concerns the delictual liability of the State for
damages suffered by the respondent, Ms Carmichele, as a result
of a
vicious assault perpetrated on her by one Coetzee. It is not the case
that the State is vicariously liable for what Coetzee
did but it is
sought to be held liable for damages where the damage was inflicted
by a party unrelated to the State.
1
[2] Five
months before the assault on the plaintiff Coetzee was released on
his own recognisances pending his trial on a charge
of rape of Ms
E.T.,
2
a seventeen-year old schoolgirl. The police and the prosecutor had
recommended to the court that he could be released with a warning
to
appear at a later date and the Magistrate, who was not apprised of
any further facts, accepted the recommendation and ordered
his
release accordingly.
3
Since the decision to release Coetzee was that of the Magistrate,
the plaintiff’s allegations for the basis of her claim are
–
broadly stated – that the police officers concerned and the
prosecutor should have realised that Coetzee was a danger to
society;
they were in duty bound to oppose Coetzee’s application for release
pending his trial; in this regard they owed, amongst
others, Ms
Carmichele (to whom I shall refer as ‘the plaintiff’) a legal
duty; they were negligent in not having opposed his
release; had they
done so, he would not have been released by the court; had he been
kept in detention he would not have assaulted
the plaintiff.
[3] The
case has followed a circuitous route. The assault on the plaintiff
occurred already on 6 August 1995 and the case against
the appellants
came to trial during September 1997 before Chetty J, sitting in the
Cape Provincial Division. At the conclusion
of the plaintiff’s case
he granted absolution from the instance, finding that the plaintiff
had failed to make out a prima facie
case of wrongfulness, which is
the primary element for delictual liability. An appeal to this Court
was dismissed on the same ground
on 2 October 2000. That judgment
will be referred to as ‘
Carmichele (SCA)
’.
4
However, the plaintiff had a measure of success when a further appeal
to the Constitutional Court was upheld, the order of absolution
from
the instance aside and the matter referred back to the trial court to
proceed with the trial. The judgment of the Constitutional
Court will
be referred to as ‘
Carmichele (CC)
’.
5
During March 2002, the trial recommenced and at its conclusion Chetty
J found in favour of the plaintiff, holding the appellants,
the
Ministers of Safety and Security and of Justice (in fact of Justice
and Constitutional Development) liable; quantum stood over
for later
adjudication. His judgment,
6
delivered on 14 May 2002, will be referred to as ‘
Carmichele
(CPD)
’ and it is the judgment presently on appeal.
7
Most of the facts relevant to the appeal have been stated in one or
more of these judgments and since they are not really in contention,

I intend to make copious use of those expositions. In
Carmichele
(CC)
there is a chronology of events; however for purposes of
this judgment I shall not make use of a chronology since it may be
misleading:
the elements of delictual liability cannot be assessed on
an
ex post facto
basis. Only the facts known or available at
any given time are relevant.
The attack on the plaintiff
[4] The detail of the attack at this stage of the case is relevant
only in so far as it establishes the motive for and nature of
the
attack. Why that is of moment will become apparent at a later stage
of the judgment. The attack took place at the home of Ms
Julie
Gösling at Noetzie, a secluded seaside hamlet some 12 kilometres
from Knysna. On Sunday 6 August 1995 the plaintiff
went to Gösling’s
home where they had arranged to meet. Gösling had not yet
arrived. The plaintiff went into the house
and was confronted by
Coetzee who apparently had broken in. When she saw him he immediately
attacked her with a pick handle. His
blows were directed at her head
and face. When she lifted her arm to protect herself, one of the
blows struck and broke her arm.
He threatened her and dragged her
around the house. He repeatedly ordered her to turn around. She
refused to do so. He discarded
the pick handle and lunged at her with
a knife. He stabbed her left breast and the blade of the knife
buckled as it hit her breastbone.
He lunged at her again and she
kicked him. He lost his balance and she managed to escape through a
door. He left the scene with
a number of valuables.
8
[5] This summary of the attack was based on the evidence of the
plaintiff which was before the Constitutional Court. No further

evidence was led in this regard and the trial Court adopted the
summary as its finding of fact.
9
Neither court found that Coetzee attempted to rape the plaintiff,
something alleged by her in the particulars of claim. There was
also
no finding that the assault had been indecent or committed with an
indecent intent.
[6] In her fairly extensive statement to the police, too, there was
no suggestion of an attempted rape.
10
That is the reason, one assumes, why Coetzee was charged with
attempted murder and housebreaking and theft but not rape. During
her
evidence in chief in the criminal trial she also did not refer to an
attempted rape. The closest she came to the subject of
rape was when
she dealt with the events that preceded the stabbing. She said:
‘
. . . well he had a knife in his mouth most of the
time and then he kept threatening me with, by saying that I must turn
around
[she was on her knees] and he is going to count to three
otherwise he is going to hit me with the stick. And then he threw the
stick aside and pulled, took the knife out of his mouth and stood
over me and stabbed me [in the chest].’
During cross-examination she stated that Coetzee had not said what he
intended doing after she had turned around but she added
‘
I kind of felt that he wanted to rape me.’
At the criminal trial Coetzee’s plea explanation, namely that the
motive for the attack was because she had caught him burgling
the
home of Gösling, was put to the plaintiff and she did not
suggest otherwise. Coetzee, it might be mentioned, had been
suspected
previously, at least by Gösling, of being a petty burglar and
thief. Immediately after this event he broke into
another home, which
was unoccupied, and stole some insignificant items. He was convicted
not only of attempting to murder the plaintiff,
but on two counts of
housebreaking and theft as well.
[7] At the trial in the Court below, the plaintiff explained that
Coetzee wanted her to turn around and lie down on the floor facing

the ground. She recalled, she said, ‘thinking’ at the time that
he wanted to rape her. When cross-examined on the proceedings
in the
criminal court, she said that since she was there she knew that he
wanted to rape her. She conceded, however, that Coetzee
never said or
suggested that he was going to rape her and that, apart from the
request to lie on her stomach, there was nothing
else on which her
inference was based.
[8] The thought of rape had, no doubt, crossed the plaintiff’s mind
because she knew Coetzee, she had been told that he had a
previous
conviction for rape, she believed that he had raped Ms E.T. and she
and, especially, Gösling believed that he was
a menace to
society who should be behind bars. But all this does not mean that
any indecent intention on the part of Coetzee was
established on a
balance of probability.
The case of E.T.
[9] On Monday 6 March 1995, Coetzee appeared before a magistrate at
Knysna on a charge of rape. It was his first appearance on
the
charge, the crime having been committed during the preceding Friday
night. The State was not ready to proceed and applied for
a
postponement, which was granted. Coetzee presumably applied for bail
but in the event, as mentioned, the prosecutor did not oppose
his
release and in fact recommended that he be released on warning.
[10] At the time the police docket indicated that Coetzee had,
apparently (‘blykbaar’), been involved in a prior rape case.
The
information came from the complainant’s mother. There was a
statement by the complainant, taken on the Saturday morning,

describing an attempted murder (he told her that he was going to kill
her and he throttled her until she lost consciousness) and
a rape (or
at least an attempted rape) by Coetzee whom she knew quite well. The
police officer who took her statement completed
a form setting out
the visible injuries to her face and leg. This and an investigation
at the scene of the crime corroborated her
version. Importantly,
there was a warning statement by Coetzee to the investigating officer
in which he said that he thought that
he might have throttled the
complainant;
11
that he had been under the influence of liquor but knew what he was
doing; that he could not dispute that he had raped her or had
sexual
relations with her; and that he had, after the event, contacted the
police. Although not reflected in the docket at the
time, Coetzee,
after having left an hotel in the company of the complainant that
Friday night, returned and alleged that he had
killed someone and
asked that the police be called. That was done but in the absence of
any further information relating to the
murder Coetzee was arrested
for being drunk in public.
[11] Primary responsibility for the contents of a docket rests with
the investigating officer, in this case one Klein who, at the
time,
was an experienced detective sergeant of fifteen years’ standing.
Klein had to hand the docket to a superior officer, the
then Captain
Hugo, whose task it was to inspect the contents of the docket and
give instructions in relation to the further investigation
or its
disposal. The docket provides for a recommendation by the
investigating officer in relation to bail and, as said, Klein

recommended that Coetzee be released on his own recognisance. The
Court below rejected his explanation for this since it found
that
Klein had falsified his diary.
12
There can be no doubt that he did, unfortunately a not uncommon
occurrence,
13
but in the light of my approach to the case not much turns on this.
[12] Captain Hugo inspected the docket on the Sunday evening
preceding Coetzee’s first court appearance, not only as a matter
of
routine but also for the purpose of that appearance where the release
of the accused on bail or otherwise would have arisen.
He read
through the docket, noted what still had to be done, and,
significantly, endorsed Klein’s recommendation that Coetzee
be
released with a warning. I say ‘significantly’ because he
conceded, quite rightly, that there was nothing in the docket
which
justified the recommendation. In spite of this he did not contact
Klein to establish the basis for Klein’s recommendation.
[13] On the Monday morning the docket went to the court prosecutor
(one Olivier) who drafted a charge sheet and from there to the

control prosecutor, Ms Louw. She, too, went through the docket in
order to instruct Olivier how to deal with the matter and to
report
to the (then) Attorney General – since the charge indicated was one
of rape – who had to decide whether to prosecute
in the High Court
or in a regional court. Both she and Olivier failed to note that the
facts in the docket disclosed an attempted
murder. She endorsed the
recommendation which had emanated from Klein without ado. What
followed is already known.
Plaintiff’s case
based on the events until 6 March 1995
[14] The facts concerning the case of E.T. gave rise to the
plaintiff’s principal cause of action against the two Ministers.
14
She contends that Coetzee should have remained in detention and that
he was released by the Magistrate due to the negligence of
Klein,
Hugo and Louw.
Carmichele (SCA)
para 12 disposed of this issue
on a simple ground:
‘
In view of the fact that Coetzee was taken into
custody after his first release on 6 March 1995 and that he was then
again released
on 18 April 1995 the court proceedings on 6 March 1995
are irrelevant and need not be considered.’
Carmichele (CC)
para 67 overruled this finding in these terms:
‘
The SCA did not consider the conduct of Klein on 5
March 1995 and dealt with the case on the basis only of the failure
by the prosecutor
to oppose bail on 18 April 1995 after Coetzee’s
return from Valkenberg. But once Coetzee was released on warning in
March, the
pattern was set. When he returned from Valkenberg that
release order was likely to remain in place unless there were grounds
on
which he could be denied bail at that stage.’
[15] The matter has therefore to be considered afresh. In this regard
the Constitutional Court said:
15
‘
The applicant’s [the plaintiff’s] claim is
founded in delict. The direct cause of the damages she suffered was
the assault by
Coetzee. However, the applicant wishes to hold the
respondents [the present appellants] liable because of the alleged
wrongful
acts or omissions of the police officer (Klein) or the
prosecutors (Louw and Olivier) at times when they were acting in the
course
and scope of their employment with the State. In order to
succeed, the applicant would have to establish at the trial that:
(1) Klein
or the prosecutors respectively owed a legal duty to the applicant to
protect her;
(2) Klein or
the prosecutors respectively acted in breach of such a duty and did
so negligently;
(3) there
was a causal connection between such negligent breach of the duty and
the damage suffered by the applicant.’
[16] At least now the plaintiff’s case is somewhat different. She
had never restricted her case against the police to the negligence
of
Klein and during the course of the defendants’ case Hugo’s
negligence was fully canvassed. Olivier’s role in the case
was
minimal and can be discounted in the larger scheme of things.
However, before assessing the validity of the plaintiff’s claim
in
relation to the events that terminated on 6 March, I wish briefly to
deal with the other legs of her case for the sake of completeness.
The events culminating
on 18 April 1995
16
[17] On 13 March 1995, Coetzee’s mother informed a family member,
Detective Sergeant Grootboom, who was also stationed at the
Knysna
police station that she was concerned about Coetzee, who was
withdrawn, and she feared he might attempt suicide or ‘get
up to
something’. When they arrived at her home they found that Coetzee
had indeed attempted suicide. Grootboom took him to hospital
where he
was treated. On the following day, 14 March 1995, Grootboom took
Coetzee to Louw. She interviewed him and he told her
that he did not
know why he committed the offence and that at the time was not aware
of what he was doing. He told her that he
had suffered from deviant
sexual behaviour since he was about 10 years old. He said that it was
as if a ‘superhuman, unnatural
force’ overcame him and he then
committed an act of which he had no knowledge.
[18] As a result of this interview, Louw decided that Coetzee should
be referred for psychiatric observation. He was brought before
the
court on 15 March 1995. At the request of the prosecutor and with his
consent, Coetzee was referred in custody to Valkenberg
Hospital in
Cape Town for 30 days’ observation in terms of section 77(1) of the
Criminal Procedure Act. The purpose of a referral
under that
provision is to ascertain whether an accused person is by reason of
mental illness or mental defect incapable of understanding
trial
proceedings so as to make a proper defence.
[19] On 18 April 1995, on his return from Valkenberg Hospital,
Coetzee again appeared in the Knysna magistrate’s court. According

to the report from Valkenberg Hospital Coetzee was mentally capable
of understanding the proceedings and able to make a proper
defence,
and was also found to have been mentally capable at the time of his
attack on E.T.. The report also mentioned that his
initial amnesia of
the events spontaneously resolved itself. Coetzee was warned to
appear on a later date.
[20] The case of the plaintiff in this regard is that Louw, in the
light of the additional knowledge she now had of the deviant

behaviour of Coetzee, should have opposed his release on 18 April
1995 by using ‘the available machinery in the Criminal Procedure

Act’. These words were not considered by this Court in
Carmichele
(SCA)
. The Constitutional Court, in footnote 71 of
Carmichele
(CC)
, noted guardedly:
‘
Whether, as the Criminal Procedure Act then read, it
was open to the magistrate in the circumstances of the present case
to review
or reconsider the release of Coetzee, is a matter on which
we do not express an opinion.’
The caveat went unheeded in the Court below and it simply proceeded
on the basis that there must have been some such provision
in the
Act. To the contrary, there was none and counsel for the plaintiff
did not suggest otherwise in this Court. When Louw, confronted
by
Gösling at the time, said that her hands were tied, she was
right and the scorn poured on her not justified.
The snooping incident
17
[21] The plaintiff frequently stayed at Gösling’s home at
Noetzie. On one such occasion towards the end of June 1995, Gösling

left for work in the morning. Shortly after she had left, the
plaintiff noticed Coetzee snooping around the house, looking in at
a
window and ‘trying to open it’. The plaintiff called and asked
what he was doing there. He replied that he was looking for
Gösling
and he then left. She telephoned Gösling and reported the
incident. Gösling informed her that Coetzee’s
excuse was false
as he must have seen her driving away in her motor vehicle.
[22] At the request of the plaintiff, Gösling again went to the
Knysna police station and reported the incident to Captain
Oliver who
referred her to Louw. According to Gösling’s evidence
‘
I said Dian you’ve got to do something about this
guy, there must be some law to protect society, not necessarily me or
people
at Noetzie and she said to me that there was nothing she could
do.’
[23] The plaintiff’s case, based on these facts, is based on the
failure of Louw – and not of the police – for not having
used
‘the available machinery’ in the Act to either ‘keep’ Coetzee
in custody or ‘add sufficient suitable conditions
to restrict him’
(presumably to his release warning). The short answer to the case as
pleaded is that, first, he could not have
been kept in custody since
he was not in custody and, second, as the Act then stood, conditions
could not have been added to his
release warning at that stage.
[24] The argument before us differed from that foreshadowed in the
pleadings. The case is now that a complaint had been laid that

Coetzee had attempted to burgle the house and had trespassed on
Gösling’s property; Louw should have given Gösling
the
advice to lay charges against him; he would then have been arrested;
all the facts concerning his deviant behaviour should
then have been
placed before the court had he applied for bail; bail would have been
refused; and there would not have been the
possibility of an attack
on the plaintiff.
Carmichele (CPD)
para 26 found the argument
attractive. I find that it fails at the outset because it is based on
false premises.
[25] As far as the
trespassing is concerned, this Court in
Carmichele (SCA)
para
13 said:
‘
Neither
the appellant nor Gösling laid any charge against Coetzee
resulting from this incident. In fact, according to Gösling,
she
never told the police or the prosecutor that Coetzee had trespassed.
This was probably because she was aware of the fact that
he was doing
chores for his mother at Gösling’s home at Noetzie and was
therefore allowed on to the property. It is clear
from her evidence
that her main reason for talking to the police and Louw was that
Coetzee had been released in the first place.’
And (at para 19):
‘
It is, moreover, highly questionable whether a later
charge of trespass would have resulted in Coetzee’s incarceration
in any
event.’
No new facts bearing on these findings were placed before the Court
below. Having reconsidered the evidence I respectfully wish
to adopt
the views of
Carmichele (SCA)
in this regard.
[26] It is not without significance that
Carmichele (SCA)
did
not have regard to the question of an attempted housebreaking.
Carmichele (CC)
referred to the fact that Coetzee was ‘trying
to open’ the window without suggesting that it amounted to an
attempted housebreaking.
The only witness to the event was the
plaintiff. In her words, the following happened:
‘
. . . later I saw Francois Coetzee snooping around
the house and looking at the window. He
seemed
to be pushing – trying to push the window open.’
What she reported to Gösling, she said, was that Coetzee
‘
had been looking in at the windows of the house . .
.’.
That is the sum total of the admissible evidence concerning the
event. Gösling, on a fair conspectus of her evidence, was
rather
inconsistent about what she had conveyed to either Oliver or Louw in
this regard. On occasion her complaint was that Coetzee
‘was
hanging around’ her house; then that ‘he appeared to be trying to
get into the window’; later that he ‘looked in
through the
window’; and also that it ‘looked as though he was trying to get
in through the window’.
[27] Oliver, who testified for the plaintiff, did not appear to
appreciate that a criminal complaint was being laid. He was dealing

with her unhappiness about the fact that Coetzee had been released on
bail. Gösling knew that if a crime had been committed
she could
lay a charge, which she never did. She herself drew a distinction
between a charge and a complaint. Hers was a complaint,
she said,
because of the fact that someone who committed a serious offence had
been released and she feared that he might commit
another. She
thought that he had to be removed from society because she knew from
her experience as a nurse that someone who had
committed two serious
crimes would do so again.
[28] This summary, I believe, establishes conclusively that there was
no justification for any steps being taken under the Criminal

Procedure Act against Coetzee and that there is no merit in the
suggestion that Coetzee should or even could have been arrested
on
this ‘evidence’.
Wrongfulness
[29] What then has to be determined is whether the facts surrounding
the release of Coetzee on 6 March 1995 gave rise to delictual

liability on the part of the State. It is appropriate to recap at
this juncture the history of this case in relation to this aspect.
As
mentioned, at the absolution stage Chetty J found that a prima facie
case of wrongfulness was not established. This finding
was upheld by
Carmichele (SCA)
. The Constitutional Court, whilst upholding
the appeal, did not find that this element had been established.
18
Instead, it found that, in spite of the fact that the plaintiff had
previously specifically disavowed any reliance on the Constitution,

superior courts still have a duty to consider in every appropriate
case whether the common law deviates from the spirit, purport
and
objects of the Bill of Rights. If it does, courts have an obligation
to remove the deviation.
19
The court of first instance and this Court
‘
assumed that the pre-constitutional test for
determining the wrongfulness of omissions in delictual actions of
this kind should
be applied. In our respectful opinion, they
overlooked the demands of section 39(2) [of the Constitution].’
20
[30] The possibility was mooted that the existing test for
wrongfulness
‘
might well have to be replaced, or supplemented and
enriched by the appropriate norms of the objective value system
embodied in
the Constitution.’
21
Absolution at the end of the plaintiff’s case or an exception is
not necessarily the appropriate manner of dealing with matters
such
as this and, although this Court adopted the correct test for
absolution,
22
it was wrongly applied.
23
[31]
Carmichele (CC)
para 44 held that the Constitution
imposes a duty on the State and all of its organs not to perform any
act that infringes the
entrenched rights such as the right to life,
human dignity, and freedom and security of the person.
‘
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.’
[32] Since it is not the case that the State was in breach of the
obligation to provide ‘laws and structures’,
Carmichele (CC)
para 45 quoted
Osman v United Kingdom
,
24
a judgment of the European Court of Human Rights (‘ECHR’), with
apparent approval:
‘
. . . the State’s obligation in this respect
extends beyond its primary duty to secure the right to life by
putting in place effective
criminal law provisions to deter the
commission of offences against the person backed up by
law-enforcement machinery for the prevention,
suppression and
sanctioning of breaches of such provisions. It is thus accepted by
those appearing before the Court that Article
2 [which deals with the
protection of the right to life] of the Convention may also imply
in
certain well-defined circumstances
a positive
obligation on the authorities to take preventive operational measures
to protect an individual whose life is at risk
from the criminal acts
of another individual.’
25
(My insert and emphasis.)
[33] The
subsequent paragraph 116 from
Osman
, which was not quoted, is
also significant:
‘For the Court, and bearing in
mind the difficulties involved in policing modern societies, the
unpredictability of human conduct
and the operational choices which
must be made in terms of priorities and resources, such an obligation
must be interpreted in
a way which does not impose an impossible or
disproportionate burden on the authorities. Accordingly, not every
claimed risk to
life can entail for the authorities a Convention
requirement to take operational measures to prevent that risk from
materialising.
Another relevant consideration is the need to ensure
that the police exercise their powers to control and prevent crime in
a manner
which fully respects the due process and other guarantees
which legitimately place restraints on the scope of their action to
investigate
crime and bring offenders to justice . . ..
In the opinion of the Court where there is an
allegation that the authorities have violated their positive
obligation to protect
the right to life in the context of their
above-mentioned duty to prevent and suppress offences against the
person (see paragraph
115 above),
it must be
established to its satisfaction that the authorities knew or ought to
have known at the time of the existence of a real
and immediate risk
to the life of an identified individual or individuals from the
criminal acts of a third party and that they
failed to take measures
within the scope of their powers which, judged reasonably, might have
been expected to avoid that risk.
. . . For
the Court, and having regard to the nature of the right protected by
Article 2, a right fundamental in the scheme
of the Convention,
it is sufficient for an applicant to show that the authorities did
not do all that could be reasonably expected
of them to
avoid
a real and immediate risk to life of which they have or ought to have
knowledge. This is a question which can only be answered
in the light
of all the circumstances of any particular case
.’
(Emphasis added.)
[34] Since
Carmichele (CC)
this Court, in a number of matters,
has had to reconsider the test for wrongfulness in the light of
constitutional demands. Counsel
did not criticise the ‘new’
approach as set out in these cases.
26
I do not wish to reformulate the principles.
[35] In order to assess whether Hugo and Louw had a public law duty
to oppose bail, one has to consider the information at their
disposal
as it appeared from the docket. In this case, the departmental
instructions to both the police and to prosecutors made
it clear that
they had a duty to oppose any bail application in a case such as that
of Coetzee. That they should have opposed Coetzee’s
release Hugo
and Louw admitted – albeit in retrospect.
[36] Their public duty must be assessed in the light of the dicta in
Carmichele (CC)
where it was said, that the police service
‘
is one of the primary agencies of the State
responsible for the protection of the public in general and women and
children in particular
against the invasion of their fundamental
rights by perpetrators of violent crime’ (para 62)
and that prosecutors
‘
have always owed a duty to carry out their public
functions independently and in the interests of the public. Although
the consideration
of bail is pre-eminently a matter for the presiding
judicial officer, the information available to the judicial officer
can but
come from the prosecutor. He or she has a duty to place
before the court any information relevant to the exercise of the
discretion
with regard to the grant or refusal of bail and, if
granted, any appropriate conditions attaching thereto.’(Para 72.)
At least as far as the police are concerned, this is nothing new.
27
The vicarious liability of the State for those of its employees who
have to exercise discretions is also well established.
28
It follows that there can be little doubt that in the light of the
particular facts of this case both Hugo and Louw had a public
law
duty to either oppose bail or to place all relevant and readily
available facts before the Court, and that they failed in their
duty.
[37] The next inquiry is whether this public law breach of duty can
be transposed into a private law breach leading to an award
of
damages. The answer, I believe, has already been provided in
Van
Duivenboden
29
and in
Van Eeden
30
and applied more recently in
Hamilton.
31
I quote at length from what was said in
Van Duivenboden
para
21-22 because most, if not all, the considerations there mentioned
apply here:
‘
Where the conduct of the State, as represented by the
persons who perform functions on its behalf, is in conflict with its
constitutional
duty to protect rights in the Bill of Rights the norm
of accountability assumes an important role in determining whether a
legal
duty ought to be recognised in any particular case. The norm of
accountability, however, need not always translate constitutional

duties into private law duties enforceable by an action for damages,
for there will be cases in which other appropriate remedies
are
available for holding the state to account. Where the conduct in
issue relates to questions of State policy, or where it affects
a
broad and indeterminate segment of society, constitutional
accountability might at times be appropriately secured through the

political process, or through one of the variety of other remedies
that the courts are capable of granting. . . . There are also
cases
in which non-judicial remedies, or remedies by way of review and
mandamus or interdict, allow for accountability in an appropriate

form and that might also provide proper grounds upon which to deny an
action for damages. However where the State’s failure occurs
in
circumstances that offer no effective remedy other than an action for
damages the norm of accountability will, in my view, ordinarily

demand the recognition of a legal duty unless there are other
considerations affecting the public interest that outweigh that norm.

. . ..’
‘
Where there is a potential threat of the kind that is
now in issue the constitutionally protected rights to human dignity,
to life,
and to security of the person, are all placed in peril and
the State, represented by its officials, has a constitutional duty to

protect them. It might be that in some cases the need for effective
government, or some other constitutional norm or consideration
of
public policy, will outweigh accountability in the process of
balancing the various interests that are to be taken into account
in
determining whether an action should be allowed . . . but I can see
none that do so in the present circumstances. We are not
concerned in
this case with the duties of the police generally in the
investigation of crime. I accept (without deciding) that
there might
be particular aspects of police activity in respect of which the
public interest is best served by denying an action
for negligence,
but it does not follow that an action should be denied where those
considerations do not arise. . . . There was
no suggestion by the
appellant that the recognition of a legal duty in such circumstances
would have the potential to disrupt the
efficient functioning of the
police, or would necessarily require the provision of additional
resources, and I see no reason why
it should otherwise impede the
efficient functioning of the police – on the contrary the evidence
in the present case suggests
that it would only enhance it. There is
no effective way to hold the State to account in the present case
other than by way of
an action for damages, and in the absence of any
norm or consideration of public policy that outweighs it the
constitutional norm
of accountability requires that a legal duty be
recognised. The negligent conduct of police officers in those
circumstances is
thus actionable and the state is vicariously liable
for the consequences of any such negligence.’
[38] From this it follows that where, as in circumstances such as the
present described in more detail in para 44, someone in the
position
of the plaintiff has no other effective remedy against the State, an
action for damages is the norm unless public policy
considerations
point in the other direction.
[39] The position of prosecutors can in principle be no different
from that of the police and this accords with what
Carmichele (CC)
para 74 had to say about their possible liability:
‘
That said, each case must ultimately depend on its
own facts. There seems to be no reason in principle why a prosecutor
who has
reliable information, for example, that an accused person is
violent, has a grudge against the complainant and has threatened to

do violence to her 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 results in the release
of the accused on bail who then proceeds to implement
the threat
made, a strong case could be made out for holding the prosecutor
liable for the damages suffered by the complainant.’
[40] The question is then whether, in the circumstances of this case,
there are public policy considerations that point in another

direction. The appellants submitted that Hugo and Louw were merely
guilty of a reasonable error of judgment and that, for that
reason, a
duty of care should not be imputed to them. Recently this Court held
that:
‘
In determining the accountability of an official or
member of government towards a plaintiff, it is necessary to have
regard to
his or her specific statutory duties, and to the nature of
the function involved. It will seldom be that the merely incorrect
exercise
of a discretion will be considered to be wrongful.’
32
The validity of the point may be illustrated by a case where, in
exercise of its discretion, a parole board orders the release
of a
prisoner.
33
In this case the discretion was different, at least qualitatively,
but apart from that, I am satisfied that on their own evidence

neither Hugo nor Louw in fact exercised any discretion. They simply
rubber-stamped a recommendation that had no foundation.
[41] Another argument raised by the appellants in submitting that
there should be a departure from the norm of State accountability
is
the absence of any proximity between the plaintiff on the one hand
and the police and prosecutors on the other. Proximity is
a
requirement for establishing a duty of care in English law
34
in order to ground liability under the tort of negligence and was
adopted by Scots law.
35
But proximity, in our law, is not a self-standing requirement for
wrongfulness.
36
Likewise, the requirement of a special relationship (which is in my
view just another label for proximity) is not essential for

wrongfulness.
37
However, if there is in fact some connecting factor between the
plaintiff and the defendant, it is more likely that in the case
where
the defendant is an individual the breach of a duty might arise; and
in the case where the defendant is the State it is less
likely that
there will be any deviation from the norm of accountability that the
Constitution imposes.
[42] This aspect may have a bearing on some remarks made in
Carmichele (CC)
para 29 and 62 and in
Carmichele (CPD)
para 30. Both emphasised, quite rightly, the special constitutional
duty of the State to protect women against violent crime in
general
and sexual abuse in particular. But this should not be seen as
implying that the State’s liability in a case such as
this is
necessarily determined by or dependent on the sex of the victim or
the nature of or motive behind the assault.
[43] Did the State owe a duty to the plaintiff? The answer lies in
the recognition of the general norm of accountability: the State
is
liable for the failure to perform the duties imposed upon it by the
Constitution unless it can be shown that there is compelling
reason
to deviate from that norm. In
Van Eeden
38
it is suggested that such a deviation might be warranted where it
would not be in the public interest to inhibit the police (and
by
parity of reasoning the prosecution) in the proper performance of
their duty. A deviation was not, however, considered to
be
necessary in that case.
[44] Nor is there reason in this case to depart from the general
principle that the State will be liable for its failure to comply

with its Constitutional duty to protect the plaintiff. On the
contrary, the plaintiff is pre-eminently a person who required the

State’s protection. It was known by Klein, Hugo and Louw that
Coetzee resided in Noetzie with his mother. Noetzie is a small
hamlet
with a few houses. Coetzee’s mother worked for Gösling in the
house where the attack on the plaintiff occurred. She
regularly
visited the house. She knew Coetzee. The attack took place within
four months after his release after the attack on E.T..
The
plaintiff was thus not simply a member of the public whom the State
had a duty to protect. She was a member of a class of people
whom the
State would have foreseen as being potential victims of another
attack by Coetzee.  Proximity, while not an independent

requirement for wrongfulness, must surely reinforce the claim that
the State should be held liable for a culpable failure to comply
with
its duties. And foreseeability of harm is another factor to be taken
into account in determining wrongfulness.
39
The greater the foreseeability, the greater the possibility of a
legal duty to prevent harm existing. This can be compared to the

development in English law in relation to the tort known as
misfeasance by a public officer. An element of this tort is, in our

terms,
dolus directus
or
eventualis
: if a public
officer knows that his unlawful conduct will probably injure another
or a class of persons, the State may be liable
for the consequences.
40
(The question of foreseeability arises also, of course, when
determining negligence: but it may in appropriate cases play a role

in determining whether the defendant should be held liable for
failure to perform a duty.)
Negligence
[45] The test for determining negligence is that enunciated in
Kruger
v Coetzee
:
41
“
For the purposes of liability culpa arises if –
(a) a
diligens paterfamilias in the position of the defendant–
(i) would
foresee the reasonable possibility of his conduct injuring another .
. . and causing him . . . loss; and
(ii) would
take reasonable steps to guard against such occurrence; and
(b) the
defendant failed to take such steps.”
But
‘
it should not be overlooked that in the ultimate
analysis the true criterion for determining negligence is whether in
the particular
circumstances the conduct complained of falls short of
the standard of the reasonable person. Dividing the inquiry into
various
stages, however useful, is no more than an aid or guideline
for resolving this issue.
It is probably so that there can be no universally
applicable formula which will prove to be appropriate in every
case.’
42
And
‘
it has been recognised that while the precise or
exact manner in which the harm occurs need not be foreseeable, the
general manner
of its occurrence must indeed be reasonably
foreseeable’
.
43
Further
‘
In considering this question [what was reasonably
foreseeable], one must guard against what Williamson JA called “the
insidious
subconscious influence of ex post facto knowledge” (in
S
v Mini
1963 (3) SA 188
(A) at 196E–F).
Negligence is not established by showing merely that the occurrence
happened (unless the case is one where
res
ipsa loquitur
), or by showing after it
happened how it could have been prevented. The
diligens
paterfamilias
does not have ‘prophetic
foresight’. (
S v Burger
(supra at 879D).) In
Overseas Tankship (UK)
Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound)
[1961] UKPC 1
;
1961 AC 388
(PC) ([1961]
[1961] UKPC 1
;
1 All ER 404)
Viscount Simonds said at 424
(AC) and at 414G – H (in All ER):
“After the event, even a fool is wise. But it is not
the hindsight of a fool; it is the foresight of the reasonable man
which
alone can determine responsibility.” ’
44
[46] For present purposes I intend first to inquire whether a
reasonable police captain (in the position of Hugo) and a reasonable

control prosecutor (in the position of Louw) would have recommended
to a court, with the information at their disposal, that Coetzee

should be released, whether on bail or with a warning.
[47] Both witnesses gave essentially one reason for their decision.
They had relied on the opinion of an experienced detective,
namely
Klein. Quite obviously, persons in their position are entitled to
rely on the opinion of another in relation to matters
such as this
but that did not entitle them to rely blindly on such an opinion
where there was nothing in the docket which justified
the opinion. It
would have been a fairly simple matter in these circumstances at
least to have asked Klein for an explanation.
(We now know that he
had none.) They both had read and studied the docket independently,
as they were obliged to do (as explained
above) and they knew what it
contained. They were obliged, considering the nature of the crime,
each to have made an independent
assessment. The departmental
guidelines issued to both of them required of them to have opposed
bail. It is not a case where they
had not read the docket due to time
or other constraints or where there was no departmental duty to read
the docket. In holding
that reasonable persons in the position of
Hugo and Louw would not have relied exclusively on the opinion of the
investigating
officer, I am not suggesting that in appropriate
circumstances they could not have relied thereon; and I am not
suggesting that
in every case there rests a duty on them to read or
study the docket. Negligence depends on the facts of a particular
case.
45
[48] Another reason for their recommendation, which may be inferred
from their evidence but which was never stated by them, is
the fact
that courts granted bail easily at the time. An example was given of
a case in which a person charged with murder was
released on bail.
Conspicuously absent is any detail whatsoever relating to the nature
or prospects of the case or the bail conditions.
[49] Obviously, if Hugo and Louw had reasonable grounds for believing
that opposing the grant of bail would have amounted to a
mere
formality with no reasonable prospect of success, their failure would
not have amounted to negligence. Their evidence does
not suggest
that. In any event, theirs was a simple decision, namely whether or
not to oppose. They were not required to make the
ultimate decision.
That was for the Magistrate. As I assess their evidence, it amounts
to no more than that there were cases involving
serious crimes where
bail had been granted. It was not that opposing applications for
bail, even in serious cases, would have been
a hopeless exercise. In
other words they were not required to attack a windmill.
[50] From this I conclude that a reasonable person in the position
of both Hugo and Louw would not have made the recommendation
and
would, at least, have placed the relevant facts at their disposal
before the Court. This they did not do.
[51] The next aspect to consider is whether persons in their position
would have foreseen the reasonable possibility that their
conduct
could have led to a further crime of violence being committed by
Coetzee, bearing in mind that
‘
the precise or exact manner in which the harm occurs
need not be foreseeable, [but] the general manner of its occurrence
must indeed
be reasonably foreseeable’.
46
In this context regard must be had to the unpredictability of human
behaviour. As was said in a slightly different context in
Palmer v
Tees Health Authority and Another
:
47
‘
Mr Sherman posed the example of a car mechanic who
negligently failed to adjust the brakes of his customer’s car, so
that it went
out of control and killed a psychiatrist’s child.
Liability would be established because there is sufficient proximity,
even
though the child was unidentified or unidentifiable, and is
merely one of a large class of potential victims. If the psychiatrist

negligently failed to diagnose, treat or restrain a psychopathic
murderer who killed the mechanic’s child why, asks Mr Sherman,

should the psychiatrist not be equally liable?
The answer to Mr Sherman’s question is that a
defective machine or mechanical device will behave in a predictable
way depending
on the laws of physics and mechanics. But a human being
will not, save in readily predictable circumstances.’
[52] Turning then to the most pertinent fact available to Hugo and
Louw at the time: They were dealing with a young male (he was
21
years of age at the time) with a possible previous conviction for
rape who had attempted to murder and rape a friend of his.
Is it not
very likely that such a person could do the same or something similar
if not detained? I would think that the answer
must be in the
affirmative and, I may add, both Hugo and Louw admitted as much,
albeit not in these stark terms and with the added
wisdom of
hindsight seven years after the event.
[53] The last stage of the inquiry relating to negligence is whether
there were reasonable steps that they could have taken to
prevent
Coetzee’s release and which they failed to take. The answer is
self-evident – they would have opposed bail – and
the conclusion
is that negligence has been established.
Causation
[54] Causation, like negligence, was not an issue in
Carmichele
(SCA)
and although it was considered by
Carmichele (CC)
para 75-77, the Constitutional Court left the matter for the decision
of the trial court. Chetty J came to the conclusion that
there was a
causal link between the negligence referred to and the plaintiff’s
damages. The matter is complicated by the fact
that Coetzee was
released in terms of a court order and not by Hugo or Louw. This
intervening fact, which might even amount to
a
novus actus
interveniens
, raises a number of difficult questions. It is not
in issue, however, that but for the intervening court order a factual
causal
link between the negligence and the plaintiff’s damages was
established.
[55] Causation has two elements. The first is the factual issue which
has to be established on a balance of probabilities by a
plaintiff
48
and the answer has to be sought by using the ‘but-for’ test:
49
‘
In order to apply this test one must make a
hypothetical enquiry as to what probably would have happened but for
the wrongful conduct
of the defendant. This enquiry may involve the
mental elimination of the wrongful conduct and the substitution of a
hypothetical
course of lawful conduct and the posing of the question
as to whether upon such an hypothesis plaintiff’s loss would have
ensued
or not. If it would in any event have ensued, then the
wrongful conduct was not a cause of the loss; aliter, if it would not
have
ensued.’
[56] To this,
Van Duivenboden
para 25 added:
‘
There are conceptual hurdles to be crossed when
reasoning along those lines for once the conduct that actually
occurred is mentally
eliminated and replaced by hypothetical conduct
questions will immediately arise as to the extent to which
consequential events
would have been influenced by the changed
circumstances. Inherent in that form of reasoning is thus
considerable scope for speculation
. . .. A plaintiff is not required
to establish the causal link with certainty but only to establish
that the wrongful conduct
was probably a cause of the loss, which
calls for a sensible retrospective analysis of what would probably
have occurred, based
upon the evidence and what can be expected to
occur in the ordinary course of human affairs rather than an exercise
in metaphysics.’
[57] An intriguing aspect raised by
Carmichele (CC)
para 76,
but left for later decision, is whether an objective or subjective
test should be applied in determining causation. In
the ordinary case
the question does not arise but in this case, because one has to
postulate a hypothetical judgment by a judicial
officer exercising a
discretion, it does. An objective test would mean that the Court has
to determine what a reasonable magistrate,
on the probabilities,
would have done. The subjective test requires the Court to establish
what the relevant magistrate would have
done, something that would
depend on the relevant magistrate’s evidence or evidence of what he
or she had done in similar cases
in the past.
[58] The Court below answered the question posed by the
Constitutional Court thus:
50
‘
In its judgment, the Constitutional Court
understandably favoured the objective approach. The subjective
approach would necessitate
the particular judicial officer having to
testify on the hypothetical question of how he would have decided a
particular case.
That would certainly not be in the interests of the
administration of justice. The objective approach eliminates that
possibility.
Adopting the objective approach therefore, the question
is how would the reasonable court have determined the matter.’
[59] Apart from the fact that the Constitutional Court did not, as I
read its judgment, favour any approach, I have difficulties
in
accepting the logic of the argument of the Court below. The first leg
of causation, being a question of fact, cannot depend
on policy
considerations such as whether or not a judicial officer should be
called to testify. Causation in this type of case
will then no longer
be a factual matter of what the effect of certain conduct on the
probabilities ‘would’ have been; it would
then become a value
judgment of what it ‘should’ have been. Factual issues cannot be
decided differently depending on the type
of case. It has to be
conceded, however, that it would be inappropriate for a particular
judicial officer to testify in relation
to the hypothetical question
of how he or she would have decided a particular case. The problem
becomes more complicated if, depending
on the organisation of a
particular court or hypothetical postponements and the like, the
identity of the relevant magistrate cannot
be established with any
measure of confidence.
[60] The solution to the conundrum appears to be this: The inquiry is
subjective in the sense that a court has to determine what
the
relevant magistrate
on the probabilities would have done
had
the application for bail been opposed. In this regard the
ex post
facto
evidence of the magistrate would generally amount to an
inadmissible opinion as to what his or her state of mind would have
been
at some time in the past. To the extent that the evidence is
admissible it would generally be unhelpful because it would be
speculative.
[61] Courts of appeal are often called upon to decide what a
reasonable judicial officer should have done and this they do by
establishing what a reasonable judicial officer
would
have
done. It may be presumed factually that judicial officers conform to
that norm and it is fair to deduce that any particular
judicial
officer (even if his or her identity cannot be established), on the
probabilities and as a matter of fact, would have
so acted. The
proper inquiry is, thus, what the relevant judicial officer, who is
factually assumed to make decisions reasonably,
would, on the
probabilities, have done. We know from experience how few bail
appeals emanate from Magistrates’ Courts and that
a small
percentage succeeds and it is thus fair to assume that magistrates on
the whole tend to get bail matters right. This factual
presumption
has to yield in the face of cogent evidence pointing in another
direction. An extreme example would be the case of
the maverick
magistrate.
[62] To determine causation requires that we transpose ourselves back
to March 1995. The law relating to bail, at the time, was
in flux
(the interim Constitution had been but a year in operation) and
accused persons were being released on bail because some
courts were
overawed by the constitutional right every accused had under s
25(2)(d) of the interim Constitution ‘to be released
from detention
with or without bail, unless the interests of justice require
otherwise.’
[63] The Constitutional Court recognised the uncertainty of the law
relating to bail at the beginning of the post-Constitutional
era when
it had to consider the constitutionality of the amended s 60 (which
came into force after the events in this case and
thus plays no
role)
51
of the Criminal Procedure Act:
‘
Although the transition to the new dispensation kept
the general body of South African law and the machinery of State
intact, the
advent of the Bill of Rights exposed all existing legal
provisions, whether statutory or derived from the common law, to
reappraisal
in the light of the new constitutional norms heralded by
that transition. The retention of the existing legal and
administrative
structures facilitated a reasonably smooth transition
from the old order to the new. But the transition did have an effect
on the
country’s criminal justice system. People who had acquired
specialised knowledge of the system, and had become skilled and
sure-footed
in its practice, were confronted with a new environment
and lost their confidence. Particularly in the lower courts, where
the
bulk of the country’s criminal cases is decided, judicial
officers, prosecutors, practitioners and investigating officers were

uncertain about the effect of superimposing the norms of a rights
culture on a system that had evolved under a wholly different
regime;
and about the effect of that superimposition in a given case. Bail
was no exception. On the contrary, much of the public
debate, and
much of the concern in official circles about law enforcement has
been directed at the granting or refusal of bail.’
52
Parliament thought it wise to intervene and a substantial overhaul of
the provisions of the Act relating to bail were introduced
later
during 1995.
[64] All this was confirmed in evidence by the Magistrate, Mr von
Bratt, who had made the order for the release of Coetzee. He
was
called by the plaintiff and said that after the advent of the interim
Constitution there was very much a renewed emphasis on
personal
freedom. The vast majority of people who had been arrested on murder
charges and who had appeared before him and other
magistrates at
Knysna, he said, were released on bail or on their own recognisances.
In exceptional cases only were people kept
in custody. He gave no
particulars of those instances and the generality of his evidence is
in that regard of little value because
as Wessels JP pointed out more
than 80 years ago –
‘
where the personal opinions of various judges are
concerned, one can always refer to cases where bail has been given
and to cases
where bail has not been given, and can press in the one
case a judgment similar to that given in the case where no bail was
granted,
and in another case a judgment similar to that given where
bail was allowed.’
53
[65] Since in deciding this issue we are trapped in a time capsule we
are to imagine an ordinary bail hearing, one of maybe hundreds,

before Mr von Bratt or one of the other magistrates at Knysna and we
have to consider what evidence would have been placed before
the
court by the average prosecutor who is not negligent.
[66] A prosecutor, I believe, would have applied for a postponement
of the bail application for a day or two in order to obtain

particulars about the alleged previous rape conviction and a report
of the medical examination of the complainant. A postponement
would
have been granted and on the next occasion the information would have
been available. The medical report would have shown
that the
complainant’s injuries were not that serious and that there were
limited prospects of proving rape. It would have transpired
that
Coetzee had no previous conviction for rape; instead there were two
previous convictions about six months old: one for housebreaking
and
the other for indecent assault accompanied by physical force
(‘fisiese geweld’). The sentence for the latter was a fine
of
R600 or six months’ imprisonment but, importantly, there was a
suspended sentence of a further twelve months’ hanging over
his
head on this conviction. The other information contained in the
docket – namely the content of the complainant’s statement
and
that of Coetzee’s warning statement – would likewise have been
presented to the Court. It would have been established that,
although
fairly well educated, he was unemployed, was living with his mother
(a domestic with other children) at Noetzie on a precarious
basis and
that he had no visible source of income.
[67] What then would Mr von Bratt have done? He was never really
asked the question in relation to the relevant factors but only
some
questions about his approach to bail in general. There is nothing
that suggests that he would have acted in some or other
irrational
manner. On the contrary, his answers were quite properly in general
terms and amounted to this: if the facts justified
it, he would not
have released Coetzee.
[68] Argument about the factors that could have been taken into
account during March 1995 was presented to us. Much was made of

whether or not a person could have been refused bail because (as in
now the case under s 60(4)(a) of the Criminal Procedure Act)
there
was a likelihood that the accused, if released on bail, would
endanger the safety of the public or any particular person,
or commit
a serious offence. The Constitutional Court, I might mention, has
held that this was a legitimate objective of bail recognised
at
common law.
54
Whether we are bound by this finding – the argument assumed that we
are not – I do not know but in any event I am not sure
whether
magistrates in 1995 would have appreciated that such a factor could
have been taken into account.
[69] In my judgment the matter should be decided without legal
niceties. Judicial officers, in dealing with run of the mill bail

applications, take an overall and broad view of the matter. They
always have taken into account the seriousness of the offence,
the
probabilities of a conviction, the nature of the probable sentence,
and the ability to put up bail. All these factors go to
the
likelihood whether the accused will stand trial, the main
consideration in deciding the bail issue.
[70] In this case the offences were serious. The complainant was told
that she would be killed, she was throttled and she was left
for
dead. Coetzee ran away, believing that he had killed her. There was
at least a serious attempt to rape her. The likelihood
of a
conviction was overwhelming if regard is had to the fact that Coetzee
directly after the event confessed to having committed
a ‘murder’
and that in his warning statement he accepted that he may have raped
the complainant. A lengthy sentence of imprisonment
was a foregone
conclusion especially since Coetzee was not a first offender. In
addition, it was highly likely that his suspended
sentence would have
been put into operation. Bail he could not afford. The only real
factor in favour of Coetzee was that he had
confessed to the crime
and gave himself up to the police but it must be remembered that he
was at the time under the influence
of liquor.
[71] I am satisfied that Mr von Bratt, more probably than not, would
have refused bail in these circumstances. At best for the
appellants
he might have granted bail but then he would have fixed bail at a
substantial amount which Coetzee or his family would
not have been
able to afford. Release Coetzee with a warning he would not have
done. Factual causation has accordingly been established.
[72] Then to legal causation, namely whether
55
‘
the wrongful act is linked sufficiently closely or
directly to the loss for legal liability to ensue or whether, as it
is said,
the loss is too remote. This is basically a juridical
problem in the solution of which considerations of policy may play a
part.’
56
The Court below, without adumbrating, held that the plaintiff’s
loss was not too remote. Since appellants do not attack that
finding,
more need not be said about the issue.
[73] The appeal is dismissed with costs, including those consequent
on the employment of two counsel.
_____________________
L T C HARMS
JUDGE OF APPEAL
AGREE:
STREICHER JA
FARLAM JA
NAVSA JA
LEWIS JA
1
Cf
K
v The Secretary of State for the Home Department
2002 EWCA Civ 775
para 17.
2
The identity of
the respective persons involved has been disclosed in previous law
reports and it would serve no purpose at this
stage by not referring
to them by name.
3
If an accused is in custody in respect of any offence a court may in
lieu of bail release the accused from custody and warn him
to appear
before a specified court at a specified time on a specified date in
connection with such offence:
s 72(1)
of the
Criminal Procedure Act
51 of 1977
.
4
Carmichele
v Minister of Safety and Security and another
[2000] ZASCA 149
;
[2000] 4 All SA 537
(A);
2001 (1) SA 489
(SCA).
5
Carmichele v Minister of Safety and Security and
Another
[2001] ZACC 22
;
2001 (10) BCLR 995
(CC);
2001 (4) SA
938
(CC).
6
Carmichele v Minister of Safety and Security and
Another
2002 (10) BCLR 1100
(C);
2003 (2) SA
656
(C).
7
Chetty J refused leave to appeal but it was
subsequently granted by this Court.
8
Carmichele (CC)
para 21.
9
Carmichele
(CPD)
para 7.
10
The date stamp on
the statement indicates that it was made later the same day but the
content indicates that it must have been
made at the earliest later
the next day.
11
The
sentence reads:
‘Ek
weet nie ek dink ek het die klaagster verwurg.’
12
Carmichele
(CPD)
para 16.
13
Also in other jurisdictions:
Kent v
Griffiths & Others
[2000] 2 WLR
1158
(CA);
[2000] EWCA Civ 25.
14
The vicarious
liability of the Ministers is not in issue.
15
Carmichele (CC)
para 25.
16
Carmichele (CC)
para 17-21.
17
Carmichele (CC)
para 21-22.
18
Carmichele (CC)
para 81.
19
Carmichele (CC)
para 33.
20
Carmichele (CC)
para 37.
21
Carmichele (CC
)
para 56.
22
Gordon Lloyd
Page & Associates v Rivera and Another
2001 (1) SA 88
(SCA) 92E-93A.
23
Carmichele (CC)
para
80
.
As
to the dangers of applications for absolution from the instance:
De
Klerk v Absa Bank Ltd and Others
2003
(4) SA 315
(SCA) para 1 and 43. The English cases that are usually
cited in matters such as this have, invariably, been decided on an
exception
basis and are consequently of limited value.
24
29 EHHR 245
at 305
[1998] ECHR 101
; ;
[1998] 5 BHRC 293
para 115.
25
In this
case the complaints were directed at the failure of the authorities
to appreciate and act on what they claim was a series
of clear
warning signs that one P represented a serious threat to the
physical safety of A and his family. P killed A’s father
and
wounded A in a shooting incident. The Court found that there was no
breach of art 2 of the Convention.
26
Especially
relevant to the present case are
Minister
of Safety and Security v Van Duivenboden
2002
(6) SA 431
(SCA);
Van
Eeden v Minister of Safety and Security (Women’s Legal Centre
Trust, as Amicus Curiae)
2003 (1) SA 389
(SCA).
27
Cf
Minister
van Polisie v Ewels
1975 (3) SA 590
(A);
Minister
of Police v Skosana
1977 (1) SA 31 (A).
28
Minister van Polisie an ‘n ander v Gamble en
‘n ander
1979 (4) SA 759
(A).
29
Minister
of Safety and Security v Van Duivenboden
2002
(6) SA 431
(SCA).
30
Van Eeden v Minister of Safety and Security (Women’s Legal
Centre Trust, as Amicus Curiae)
2003 (1) SA 389
(SCA).
31
Minister of Safety and Security v Hamilton
an unreported
judgment of this Court delivered on 26 September 2003.
32
Premier
of the Western Cape v Fair Cape Property Developers (Pty) Ltd
[2003] 2 All SA 465
(SCA) para 37.
33
Cf the
facts in
K v The
Secretary of State for the Home Department
2002
EWCA Civ 775
in
which the Secretary for State did not deport a dangerous criminal
who, subsequently raped the plaintiff. An action was denied
to the
plaintiff but not on the ground now under discussion.
34
Caparo
plc
v
Dickman
[1990] UKHL 2
;
[1990] 2 AC 605.
35
Gibson v Orr
[1999] Scot CS 61.
36
See also
Van Eeden v Minister of Safety and Security
2003 (1)
SA 389
(SCA) para 20.
Carmichele (CC)
para 49 referred to it
in a discussion of the attitude of the ECHR to the perceived English
law doctrine of immunity. I suspect
that the understanding of
Carmichele (CC)
para 48 of the judgment of the ECHR in
Z
and Others v United Kingdom
[2001] ECHR 333
;
[2001] 10 BHRC 384
may be wrong. It
did not hold that the immunity approach of the English law meant
that the applicant s did not have available
appropriate means of
obtaining a determination of their allegations. On the contrary, the
ECHR conceded (at para 100) that it
had erred in
Osman v United
Kingdom
29 EHHR 245
[1998] ECHR 101
; ;
[1998] 5 BHRC 293
para 115
in
holding that a doctrine of immunity existed in English law. What it
held was since the matter had been decided in a procedure
similar to
our exception procedure, and without a full trial, the applicants
had been denied an appropriate means to establish
whether a duty of
care in fact existed.
37
Van Eeden v Minister of Safety and Security
2003 (1) SA 389
(SCA) para 22.
38
Van
Eeden v Minister of Safety and Security
2003
(1) SA 389
(SCA).
39
BoE
Bank Ltd v Ries
[2002] 2 All SA 247
(A);
2002 (2) SA 39
(SCA) para 21: ‘Such
foreseeability is often an important, even a decisive factor in
deciding whether wrongfulness has been
established, but it is not in
itself enough . . .’.
Premier
of the Western Cape v Fair Cape Property Developers (Pty) Ltd
[2003] 2 All SA 465
(SCA) para 42
40
Akenzua and Another v Secretary of State for
the Home Department
[2003] 1 All ER 35
(CA); [2002]EWCA Civ 1470.
41
41
1966 (2) SA 428
(A) at 430E–F.
42
Sea
Harvest Corporation (Pty) Ltd and another v Duncan Dock Cold Storage
(Pty) Ltd and another
[2000] 1 All SA 128
(A);
2000 (1) SA 827
(SCA) para 21-22.
43
Ibid
para 22.
44
S v
Bochris Investments (Pty) Ltd and another
1988 (1) SA 861
(A) 866J-867B quoted in
Sea
Harvest
para 23.
45
Cf
Carmichele
(CC)
para 73.
46
Sea
Harvest
para 22
quoted earlier.
47
[1999]
EWCA Civ 1533
para 24-25.
48
49
48
International Shipping Co (Pty) Ltd v Bentley
1990 (1) SA 680
(A) 700E–701F.
49
De Klerk
v Absa Bank Ltd and Others
2003 (4) SA 315
(SCA).
50
Carmichele
(CPD)
para 36.
51
Criminal
Procedure Second Amendment Act No. 75 of 1995
which came into effect
on 21 September 1995.
52
S v
Dlamini; S v Dladla; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (7) BCLR 771
,
1999 (4) SA 623
(CC) para 2. Significant is fn 6.
53
Ali Ahmed v
Attorney-General
1921
TPD 587
589. The statutory provisions relating to bail during 1921
differed from what they were during 1995 but the point is still
valid.
54
S v
Dlamini; S v Dladla; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (7) BCLR 771
,
1999 (4) SA 623
(CC)
para
52. The authorities quoted in support of this statement – S v
Ramgobin
1985 (3) SA 587
(N);
1985 (4) SA 130
(N) – unfortunately,
do not bear this out.
55
International
Shipping Co (Pty) Ltd v Bentley
1990 (1) SA 680 (A) 700.
56
For a
detailed discussion of the subject in another context see
Thoroughbred Breeders’
Association of South Africa v Price Waterhouse
2001 (4) SA 551
(SCA);
[2001] 4 All SA 161
(A) para 46 et seq.