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

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 48/00
ALIX
JEAN CARMICHELE

Applicant
versus
THE
MINISTER OF SAFETY AND SECURITY

First Respondent
THE
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT

Second Respondent
Heard
on       :
20 March 2001
Decided
on    :
16 August 2001
JUDGMENT
ACKERMANN
and GOLDSTONE JJ:
The
Background
[1]
On the morning of 6 August 1995, Alix Jean
Carmichele (the applicant) was viciously attacked and injured by
Francois Coetzee (Coetzee).
The attack took place at the home of
Julie Gosling (Gosling) at Noetzie, a small secluded village on the
sea some 12 kilometres
outside Knysna. 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.
[2]
The applicant instituted proceedings in the Cape
of Good Hope High Court (the 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.
[3]
In
the High Court, the issue of the liability of the respondents was
separated from that of damages. At the close of the applicant’s

case, Chetty J found that there was no evidence upon which a court
could reasonably find that the police or prosecutors had acted

wrongfully. He granted an order of absolution from the instance in
favour of the respondents with costs. With the leave of the
High
Court, the applicant appealed to the Supreme Court of Appeal (the
SCA). The appeal was dismissed with costs.
1
[4]
The
applicant now seeks special leave to appeal to this Court from the
order of the SCA. In considering the application, we also
heard
argument on the merits of the appeal. The jurisdiction of this Court
to entertain such an application and the requirements
for the grant
of special leave were considered in
S
v Boesak.
2
It was pointed out by Langa DP, with reference to section 167(3)(b)
of the Constitution, that the issues to be decided must be

constitutional matters or issues connected with decisions on
constitutional matters.
3
It must in addition be in the interests of justice that the appeal
should be heard and in that regard the prospects of success

constitute an important factor.
4
The Deputy President stated, inter alia, that:
“
Under
s 167(7), the interpretation, application and upholding of the
Constitution are also constitutional matters. So, too, under
s 39(2),
is the question whether the interpretation of any legislation or the
development of the common law promotes the spirit,
purport and
objects of the Bill of Rights.”
5
In
this case we are primarily concerned with the development of the
common law delictual duty to act.
The
Facts
[5]
The facts which emerged from the evidence adduced
on behalf of the applicant in the High Court appear from the judgment
of Chetty
J and from that of Vivier JA who delivered the unanimous
judgment of the SCA. It will make the discussion in this judgment
more
comprehensible if the relevant facts are restated.
[6]
Coetzee was born in 1973. He had problems of a
sexual nature from about the age of ten years and had sexually
molested his niece
when in his early teens. His mother, Mrs Annie
Coetzee, had been sufficiently concerned to seek advice from their
doctor but had
been advised that her son was too young to be given
medication.
[7]
Coetzee passed his matriculation examinations. He
sang for some time in a choir that devoted its time to entertaining
ill people.
He also spent many hours at home reading.
[8]
On 3 June 1994, when he was 20 years of age,
Coetzee committed an indecent act on a 25 year old acquaintance of
his, Beverley Claassen.
Late at night, while she was asleep, he
climbed through her open bedroom window and lay next to her in her
bed. He indecently fondled
her until she awoke and gave the alarm. He
escaped through the window and ran off. On 6 September 1994, he stood
trial on charges
of housebreaking and indecent assault arising from
that incident. He pleaded guilty and was convicted of both charges.
On the housebreaking
charge, he was sentenced to 18 months
imprisonment conditionally suspended for four years, and on the
indecent assault charge he
was sentenced to a fine of R600 or six
months imprisonment plus twelve months imprisonment conditionally
suspended for four years.
[9]
Less
than six months later, on 4 March 1995, Coetzee attempted to rape and
murder E T (E).
6
Coetzee and E were school friends. She was then 17 years old. After a
dance at the Hornlee Hotel, Knysna, Coetzee offered to walk
E home.
She accepted his offer. Along the way he persuaded her to take a
detour along a footpath. At a deserted spot he attempted
to kiss her
and, when she resisted, he threw her to the ground and repeatedly
punched and kicked her. He dragged her into tall
grass and ripped off
her clothes. He forcibly held her down by sitting on her while he
repeatedly punched her in the face, throttled
her and bit her. He
threatened to kill her. She eventually lost consciousness. At his
subsequent trial, Coetzee admitted he had
wanted to rape E but denied
that he had done so. Whether in fact he did rape E after she lost
consciousness was not established.
He left her for dead and ran back
to the Hornlee Hotel.
[10]
When Coetzee arrived at the Hornlee Hotel, he
informed the management that he had just killed a girl and asked them
to summon the
police. When the police arrived he repeated that he had
killed a girl but refused to furnish any further details. He was
arrested
for being drunk in a public place.
[11]
E regained consciousness, gathered her clothes and
walked to the house of a neighbour and friend. She arrived there at
about 4 am.
She reported the attack to her friend and shortly
thereafter to her own mother (Mrs T) who summoned the police. E was
taken to
hospital where the examining doctor noted the extensive
injuries inflicted on her.
[12]
During that morning (4 March 1995) Mrs T and E
went to the Knysna charge office where they reported the attack to
the duty officer,
Sergeant Beaulah Jantjies (Jantjies). She took a
detailed statement from E and Mrs T who informed her that Coetzee had
told them
he had a previous conviction for rape. For the benefit of
the investigating officer, Jantjies noted that information in the
investigation
diary. Immediately thereafter, the investigating
officer, Detective Sergeant David Klein (Klein), took over the
matter. He also
interviewed E and accompanied her to the scene of the
attack where he found a sandal and an item of underwear that E told
him belonged
to her.
[13]
The following morning (5 March 1995), Klein
interviewed Coetzee, informing him of the charge. He appeared in
court the next day.
In his note to the prosecutor, Klein stated that
there was no reason to deny Coetzee bail and recommended that he be
released on
warning. Coetzee appeared before Magistrate Von Bratt
(the Magistrate) on a charge of rape. The prosecutor, Mr G Olivier
(Olivier),
did not place before the magistrate any information
concerning Coetzee’s previous conviction, nor did he oppose
Coetzee’s
release on his own recognisance. Coetzee was
unconditionally released and warned to appear again on 17 March 1995.
[14]
After his release, Coetzee returned to Noetzie
where he was living with his mother. A day or two later, Mrs T called
on Gosling,
who is a friend of the applicant. Mrs Coetzee worked for
Gosling both as a domestic worker and as a general assistant in her
business
in Knysna. The purpose of Mrs T’s visit was to inform
Gosling of the attack on E and of Coetzee’s previous
conviction.
In evidence in the High Court, Gosling stated that she
was distressed at the news because she thought:
“
that
he would obviously commit this crime again and I felt very scared to
be anywhere where he was.”
She
added that she felt:
“
that
he shouldn’t maintain a presence in society because my
knowledge as a nursing sister and just in life is that a man that
has
committed two similar crimes is going to do it again.”
[15]
Because of her concern, Gosling went to speak to
Captain Lawrence Oliver (Oliver), a police officer at the Knysna
police station.
She told him she did not think that Coetzee “should
be out on the street” and asked whether he could not be
detained
pending his trial. Oliver advised her to discuss the matter
with the senior prosecutor at Knysna, Ms Dian Louw (Louw). Gosling
went to Louw whom she knew well. Her office was in the same building
as the Knysna police station. She told Louw that she:
“
was
afraid that Francois would hurt one of my friends or me and that I
really thought he would commit this crime again.”
Louw
informed her that there was no law to protect them and that the
authorities’ hands were tied unless Coetzee committed
another
offence.
[16]
On 10 March 1995, Coetzee called at the T home and
told Mrs T that he wanted to talk. She ordered him off the premises
and summoned
the police. Coetzee ran away. When the police arrived,
she reported the incident. She was upset that he was at large.
[17]
On 13 March 1995, Mrs Coetzee’s relative,
Detective Sergeant Grootboom (Grootboom) gave her a lift home. He was
also stationed
at the Knysna police station. She informed him that
she was concerned about Coetzee, who was withdrawn, and she feared he
might
attempt suicide or “get up to something.” She
raised these concerns with Grootboom in the hope that he might
arrange
for her son to be sent to some institution where he could be
treated. When they arrived at her home they found that Coetzee had

indeed attempted suicide. Grootboom took him to hospital where he was
treated. After his discharge, he again returned home to his
mother.
[18]
On the following day, 14 March 1995, Grootboom
took Coetzee to Louw. She interviewed him and took notes of the
interview. According
to the notes, he told her that he did not know
why he committed the offence against E and that at the time he was
not aware of
what he was doing. He told her that he had a problem
because when he saw a girl in a bathing suit he could not control
himself.
When that happened he would run home and masturbate. He said
that this condition had begun when he was about 10 years old.
Concerning
the attack on E, Coetzee told Louw he was walking her home
when they came to a dark passage where it “just happened”

(“toe het dit net gebeur”). Afterwards he just saw her
lying there. He jumped up and ran to the Hornlee Hotel where
he asked
the owner to call the police. When the police arrived he handed
himself over to them. 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.
[19]
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.
7
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. On the same day Louw prepared a report for
the
hospital authorities in which she included the details of the attack
on E, a reference to his previous conviction, a description
of the
events thereafter and a rendition of her interview with Coetzee.
[20]
On
18 April 1995, on his return from Valkenberg Hospital, Coetzee again
appeared in the Knysna magistrate’s court. The prosecutor
was
again Olivier and the presiding magistrate a Mr Goosen. According to
the report from Valkenberg Hospital Coetzee was found
to be 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.
8
The criminal charges were put to Coetzee and he pleaded not guilty.
He gave as his reason his doubt as to whether he had raped
the
complainant. The case was postponed to 2 May 1995 pending the
attorney-general’s decision whether to proceed in the High

Court. There is no reference in the record to the question of bail
having been raised. Coetzee was warned to appear on 2 May 1995.
On
that date the trial was further postponed.
[21]
The applicant frequently stayed at Gosling’s
home in Noetzie. On one such occasion towards the end of June 1995,
Gosling left
for work in the morning. Shortly after she had left, the
applicant noticed Coetzee snooping around the house, looking in at a
window
and trying to open it. The applicant called to him and asked
what he was doing there. He replied that he was looking for Gosling.

He then left. The applicant telephoned Gosling and reported the
incident. Gosling informed the applicant that Coetzee’s excuse

was false as he must have seen her driving away in her motor vehicle.
[22]
At the request of the applicant, Gosling again
went to the Knysna police station and reported the incident to
Captain Oliver who
again referred her to Louw. According to Gosling’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.”
On
2 August 1995 both the applicant and Gosling again broached the
matter with Louw when she visited them at Gosling’s business

premises. Again, according to Gosling, Louw claimed she was powerless
to do anything about Coetzee.
[23]
On Sunday, 6 August 1995 the applicant went to
Gosling’s home where they had arranged to meet. Gosling had not
yet arrived.
The applicant went into the house and was confronted by
Coetzee who had apparently broken in. 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.
She ran along
the beach where someone came to her assistance. Coetzee was charged
on a number of counts including one of attempting
to murder the
applicant.
[24]
The prosecution of Coetzee on the charge of raping
E came to trial on 11 September 1995. He admitted that he had
assaulted her but
denied rape. He was convicted of attempted rape and
sentenced to seven years imprisonment. On 13 December 1995 he was
prosecuted
for the attack on the applicant and was convicted of
attempted murder and of housebreaking. As mentioned above, he was
given an
effective sentence of twelve-and-a-half years imprisonment.
The
Applicant’s Cause of Action
[25]
The applicant’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 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:
(a)
Klein or the prosecutors respectively owed
a legal duty to the applicant to protect her;
(b)
Klein or the prosecutors respectively acted
in breach of such a duty and did so negligently;
(c)
there was a causal connection between such
negligent breach of the duty and the damage suffered by the
applicant.
In
deciding whether to grant the respondents’ application for
absolution from the instance the trial court and the SCA dealt
with
issue (a) only. Having found against the applicant in respect of that
issue, it became unnecessary to consider whether there
was sufficient
evidence on the remaining two issues to place the respondents on
their defence.
The
Test for an Order of Absolution from the Instance
[26]
Both
the trial judge and SCA applied the appropriate test for the grant of
absolution from the instance at the close of the plaintiff’s

case, viz. whether a court, applying its mind reasonably to the
evidence, could or might (not should or ought to) find that the

police or prosecutors at Knysna owed a legal duty to the applicant to
protect her.
9
The
Argument in this Court in Relation to the Duty to Act
[27]
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.”
[28]
Counsel for the applicant submitted that both the
High Court and the SCA erred in not applying the relevant provisions
of the Constitution
in determining whether Klein or the prosecutors
owed a legal duty to the applicant to protect her. In particular,
counsel relied
upon the constitutional obligation on all courts to
“develop the common law” with due regard to the “spirit,
purport and objects” of the Bill of Rights. He submitted that,
had the common law been so developed, the High Court and the
SCA
would have found that there existed a legal duty to act.
[29]
It was further contended for the applicant that
the common law duty to act should be developed in the light of the
provisions of
the Bill of Rights in the interim Constitution (IC)
which was in operation at all times relevant to the applicant’s
cause
of action. Counsel relied on the following provisions of the
IC:
“
8.
Equality.
—(1) Every person shall
have the right to equality before the law and to equal protection of
the law.
(2) No person shall be
unfairly discriminated against, directly or indirectly, and without
derogating from the generality of this
provision, on one or more of
the following grounds in particular: race, gender, sex, ethnic or
social origin, colour, sexual orientation,
age, disability, religion,
conscience, belief, culture or language.
(3) (a) This section
shall not preclude measures designed to achieve the adequate
protection and advancement of persons or groups
or categories of
persons disadvantaged by unfair discrimination, in order to enable
their full and equal enjoyment of all rights
and freedoms.
(b) Every person or
community dispossessed of rights in land before the commencement of
this Constitution under any law which would
have been inconsistent
with subsection (2) had that subsection been in operation at the time
of the dispossession, shall be entitled
to claim restitution of such
rights subject to and in accordance with sections 121, 122 and 123.
(4)
Prima facie
proof of discrimination on any of the grounds specified in subsection
(2) shall be presumed to be sufficient proof of unfair discrimination

as contemplated in that subsection, until the contrary is
established.
9.
Life.
—
Every person shall have the
right to life.
10.
Human dignity.
—
Every person shall
have the right to respect for and protection of his or her dignity.
11.
Freedom and security of the person.—
(1)
Every person shall have the right to freedom and security of the
person, which shall include the right not to be detained without

trial.
(2) No person shall be
subject to torture of any kind, whether physical, mental or
emotional, nor shall any person be subject to
cruel, inhuman or
degrading treatment or punishment.
. . . .
13.
Privacy.
—
Every person shall have
the right to his or her personal privacy, which shall include the
right not to be subject to searches of
his or her person, home or
property, the seizure of private possessions or the violation of
private communications.”
Counsel
relied further on the provisions of section 215 of the IC, which
read:
“
The
powers and functions of the Service shall be–
(a) the prevention of
crime;
(b) the investigation of
any offence or alleged offence;
(c) the maintenance of
law and order; and
(d) the preservation of
the internal security of the Republic.”
More
specifically, so the submission ran, the IC imposed a particular duty
on the state to protect women against violent crime in
general and
sexual abuse in particular. The Court was referred to the following
statement of the SCA in
S
v Chapman
:
1
0
“
Rape
is a very serious offence, constituting as it does a humiliating,
degrading and brutal invasion of the privacy, the dignity
and the
person of the victim.
The rights to dignity, to
privacy and the integrity of every person are basic to the ethos of
the Constitution [in a footnote there
is reference, inter alia, to
sections 10, 11 and 13 of the IC] and to any defensible civilisation.
Women in this country are
entitled to the protection of these rights.”
[30]
It was submitted further that the police and
prosecution services are among the primary agencies of the state
responsible for the
discharge of its constitutional duty to protect
the public in general and women in particular against violent crime.
It was conceded
by counsel for the applicant that it does not follow
that any such failure in that duty entitles the victim to damages in
delict.
It was contended, however, that on the facts of this case,
the applicant is entitled to such damages.
[31]
Despite
the failure by the applicant to rely directly upon the provisions of
either section 35(3) of the IC or section 39(2) of
the Constitution
in the High Court and SCA, counsel for the respondent did not object
to this issue being raised in this Court.
If covered by the
pleadings, and in the absence of unfairness, parties are ordinarily
not precluded from raising new legal arguments
on appeal.
1
1
In constitutional matters, however, courts have an interest in a
constitutional issue being raised timeously. The relevance of
this
omission in the present case is dealt with later in this judgment.
1
2
[32]
Neither
the trial court nor the SCA had regard to these provisions of the
Bill of Rights in the IC or the Constitution. They also
did not to
have regard to section 39(2) of the Constitution, which requires all
our courts to develop the common law with due regard
to the “spirit,
purport and objects” of the Bill of Rights.
1
3
The
Obligation to Develop the Common Law
[33]
The
Constitution is the supreme law. The Bill of Rights, under the IC,
applied to all law.
1
4
Item 2 of schedule 6 to the Constitution provides that “all
law” that was in force when the Constitution took effect,

“continues in force subject to . . consistency with the
Constitution.”
1
5
Section 173 of the Constitution gives to all higher courts, including
this Court, the inherent power to develop the common law,
taking into
account the interests of justice.
1
6
In section 7 of the Constitution, the Bill of Rights enshrines the
rights of all people in South Africa, and obliges the state
to
respect, promote and fulfil these rights. Section 8(1) of the
Constitution makes the Bill of Rights binding on the judiciary
as
well as on the legislature and executive. Section 39(2) of the
Constitution provides that when developing the common law, every

court must promote the spirit, purport and objects of the Bill of
Rights.
1
7
It follows implicitly that where the common law deviates from the
spirit, purport and objects of the Bill of Rights the courts
have an
obligation to develop it by removing that deviation.
[34]
Under
the IC the circumstances in which the common law could be developed
by this Court was a complex issue.
1
8
However, under the Constitution there can be no question that the
obligation to develop the common law with due regard to the spirit,

purport and objects of the Bill of Rights is an obligation which
falls on all of our courts including this Court.
[35]
In
this case the High Court and the SCA were requested to develop the
common law, not on a constitutional basis, but in the light
of the
unusual nature of the applicant’s cause of action. The common
law, especially in the field of delictual liability,
has constantly
required development.
1
9
Where a court develops the common law, the provisions of section
39(2) of the Constitution oblige it to have regard to the spirit,

purport and objects of the Bill of Rights.
[36]
In
exercising their powers to develop the common law, judges should be
mindful of the fact that the major engine for law reform
should be
the legislature and not the judiciary. In this regard it is worth
repeating the dictum of Iacobucci J in
R
v Salituro
,
2
0
which was cited by Kentridge AJ in
Du
Plessis v De Klerk
:
2
1
“
Judges
can and should adapt the common law to reflect the changing social,
moral and economic fabric of the country. Judges should
not be quick
to perpetuate rules whose social foundation has long since
disappeared. Nonetheless there are significant constraints
on the
power of the judiciary to change the law. . . . In a constitutional
democracy such as ours it is the Legislature and not
the courts which
has the major responsibility for law reform . . . . The judiciary
should confine itself to those incremental changes
which are
necessary to keep the common law in step with the dynamic and
evolving fabric of our society.”
Under
our Constitution the duty cast upon judges is different in degree to
that which the Canadian Charter of Rights cast upon Canadian
judges.
In South Africa, the IC brought into operation, in one fell swoop, a
completely new and different set of legal norms.
2
2
In these circumstances the courts must remain vigilant and should not
hesitate to ensure that the common law is developed to reflect
the
spirit, purport and objects of the Bill of Rights. We would add, too,
that this duty upon judges arises in respect both of
the civil and
criminal law, whether or not the parties in any particular case
request the court to develop the common law under
section 39(2).
[37]
The
proceedings in the High Court and the SCA took place after 4 February
1997 when the Constitution became operative. It follows
that both the
High Court and the SCA were obliged to have regard to the provisions
of section 39(2) of the Constitution when developing
the common
law.
2
3
However, both courts 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).
[38]
In
the High Court and the SCA the applicant relied only on the common
law understanding of wrongfulness which has been developed
by our
courts over many years. Save in one respect referred to in the
applicant’s heads of argument in the SCA, no reliance
was
placed on the provisions of the IC or the Constitution as having in
any way affected the common law duty to act owed by police
officers
or prosecutors to members of the public. With regard to the
“interests of the community” imposing a legal
liability
on the authorities, it was submitted by the applicant’s counsel
that it would “encourage the police and prosecuting
authorities
to act positively to prevent violent attacks on women.” In
support of that submission counsel referred to authorities
in this
Court and the SCA devoted to patterns of discrimination against
women.
2
4
It does not appear to have been suggested that there was any
obligation on the High Court or the SCA to develop the common law
of
delict in terms of section 39(2) of the Constitution.
2
5
[39]
It needs to be stressed that the obligation of
courts to develop the common law, in the context of the section 39(2)
objectives,
is not purely discretionary. On the contrary, it is
implicit in section 39(2) read with section 173 that where the common
law as
it stands is deficient in promoting the section 39(2)
objectives, the courts are under a general obligation to develop it
appropriately.
We say a “general obligation” because we
do not mean to suggest that a court must, in each and every case
where the
common law is involved, embark on an independent exercise
as to whether the common law is in need of development and, if so,
how
it is to be developed under section 39(2). At the same time there
might be circumstances where a court is obliged to raise the matter

on its own and require full argument from the parties.
[40]
It was implicit in the applicant’s case that
the common law had to be developed beyond existing precedent. In such
a situation
there are two stages to the inquiry a court is obliged to
undertake. They cannot be hermetically separated from one another.
The
first stage is to consider whether the existing common law,
having regard to the section 39(2) objectives, requires development

in accordance with these objectives. This inquiry requires a
reconsideration of the common law in the light of section 39(2). If

this inquiry leads to a positive answer, the second stage concerns
itself with how such development is to take place in order to
meet
the section 39(2) objectives. Possibly because of the way the case
was argued before them, neither the High Court nor the
SCA embarked
on either stage of the above inquiry.
[41]
There is an obligation on litigants to raise
constitutional arguments in litigation at the earliest reasonable
opportunity in order
to ensure that our jurisprudence under the
Constitution develops as reliably and harmoniously as possible. In
the result this Court
has not had the benefit of any assistance from
either court on either stage of the inquiry referred to above. We
consider later
what this Court should do in these circumstances. But
first it is necessary to deal with the reasons of the SCA for
dismissing
the appeal.
[42]
The SCA, as the High Court had done, had regard
and referred to wrongfulness as it has been developed in our common
law prior to
the operation of the IC. Vivier JA stated the following
in his judgment:
“
The
appropriate test for determining the wrongfulness of omissions in
delictual actions for damages in our law has been settled
in a number
of decisions of this Court such as
Minister
van Polisie v Ewels
1975 (3) SA 590
(A)
at 597A–C;
Minister of Law and
Order v Kadir
[1994] ZASCA 138
;
1995 (1) SA 303
(A) at
317C–318I;
Knop v Johannesburg
City Council
1995 (2) SA 1
(A) at 27G–I
and
Government of the Republic of South
Africa v Basdeo and Another
1996 (1)
355 (A) at 367E–H. The existence of the legal duty to avoid or
prevent loss is a conclusion of law depending upon
a consideration of
all the circumstances of each particular case and on the interplay of
many factors which have to be considered.
The issue, in essence, is
one of reasonableness, determined with reference to the legal
perceptions of the community as assessed
by the Court.
In
Minister of Law and
Order v Kadir
(
supra
) Hefer JA stated the nature of the
enquiry thus at 318E–H:
‘
As
the judgments in the cases referred to earlier demonstrate,
conclusions as to the existence of a legal duty in cases for which

there is no precedent entail policy decisions and value judgments
which “shape and, at times, refashion the common law [and]
must
reflect the wishes, often unspoken, and the perceptions, often dimly
discerned, of the people” (
per
M M Corbett in a lecture reported
sub
nom
“Aspects of the Role of
Policy in the Evolution of the Common Law” in
(1987)
SALJ
52
at 67). What is in effect required is that, not merely the
interests of the parties
inter se
,
but also the conflicting interests of the community, be carefully
weighed and that a balance be struck in accordance with what
the
court conceives to be society’s notions of what justice
demands.’
Hefer
JA also stressed the difference between morally reprehensible and
legally actionable omissions and warned that a legal duty
is not
determined by the mere recognition of social attitudes and public and
legal policy (at 320A–B). The question must
always be whether
the defendant ought reasonably and practically to have prevented harm
to the plaintiff: in other words, is it
reasonable to expect of the
defendant to have taken positive measures to prevent the harm (Prof J
C van der Walt in Joubert (ed)
The
Law of South Africa
vol
8 1
st
re-issue part 1 para 56).”
2
6
[43][
As pointed out in the quotation above, in determining whether there
was a legal duty on the police officers to act, Hefer
JA in
Minister
of Law and Order v Kadir
2
7
referred to weighing and the striking of a balance between the
interests of parties and the conflicting interests of the community.

This is a proportionality exercise with liability depending upon the
interplay of various factors. Proportionality is consistent
with the
Bill of Rights, but that exercise must now be carried out in
accordance with the “spirit, purport and objects of
the Bill of
Rights” and the relevant factors must be weighed in the context
of a constitutional state founded on dignity,
equality and freedom
and in which government has positive duties to promote and uphold
such values.
[44]
Under
both the IC and the Constitution, the Bill of Rights entrenches the
rights to life,
2
8
human dignity
2
9
and freedom and security of the person.
3
0
The Bill of Rights binds the state and all of its organs. Section
7(1) of the IC provided:
“
This
Chapter shall bind all legislative and executive organs of state at
all levels of government.”
Section
8(1) of the Constitution provides:
“
The
Bill of Rights applies to all law, and binds the legislature, the
executive, the judiciary and all organs of state.”
It
follows that there is a duty imposed on the state and all of its
organs not to perform any act that infringes these rights. In
some
circumstances there would also be a positive component which obliges
the state and its organs to provide appropriate protection
to
everyone through laws and structures designed to afford such
protection.
[45]
In
the United States, a distinction is drawn between “action”
and “inaction” in relation to the “due
process”
clause of their Constitution, (the 14
th
Amendment). In
DeShaney
v Winnebago County Department of Social Services
,
3
1
the majority declined to hold a government authority liable for a
failure to take positive action to prevent harm. As stated in
the
dissent of Brennan J:
“
The
Court’s baseline is the absence of positive rights in the
Constitution and a concomitant suspicion of any claim that seems
to
depend on such rights.”
3
2
The
provisions of our Constitution, however, point in the opposite
direction. So too do the provisions of the European Convention
on
Human Rights (Convention). Article 2(1) of the Convention provides
that “Everyone’s right to life shall be protected
by
law.” This corresponds with our Constitution’s
entrenchment of the right to life. We would adopt the following
statement in
Osman
v United Kingdom
:
3
3
“
It
is common ground that 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 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.”
[46]
Counsel
for the respondents referred us to decisions of the English courts in
which public authorities such as the police and local
authorities
have been granted what amounts to an immunity against claims in
delict by members of the public.
3
4
However, in a recent decision of the House of Lords a more flexible
approach to delictual claims against public authorities has
emerged.
In
Barrett
v Enfield London Borough Council
3
5
the decision to strike out a claim against a local authority for the
negligent failure to safeguard the welfare of a minor was
reversed.
The reasoning of Lord Browne-Wilkinson is as follows:
“
(1)
Although the word ‘immunity’ is sometimes incorrectly
used, a holding that it is not fair, just and reasonable to
hold
liable a particular class of defendants whether generally or in
relation to a particular type of activity is not to give immunity

from a liability to which the rest of the world is subject. It is a
prerequisite to there being any liability in negligence at
all that
as a matter of policy it is fair, just and reasonable in those
circumstances to impose liability in negligence. (2) In
a wide range
of cases public policy has led to the decision that the imposition of
liability would not be fair and reasonable in
the circumstances, eg
some activities of financial regulators, building inspectors, ship
surveyors, social workers dealing with
sex abuse cases. In all these
cases and many others the view has been taken that the proper
performance of the defendant’s
primary functions for the
benefit of society as a whole will be inhibited if they are required
to look over their shoulder to avoid
liability in negligence. In
English law the decision as to whether it is fair, just and
reasonable to impose a liability in negligence
on a particular class
of would-be defendants depends on weighing in the balance the total
detriment to the public interest in all
cases from holding such class
liable in negligence as against the total loss to all would-be
plaintiffs if they are not to have
a cause of action in respect of
the loss they have individually suffered. (3) In English law,
questions of public policy and the
question whether it is fair and
reasonable to impose liability in negligence are decided as questions
of law. Once the decision
is taken that, say, company auditors though
liable to shareholders for negligent auditing are not liable to those
proposing to
invest in the company (see
Caparo
Industries plc v Dickman
[1990] UKHL 2
;
[1990] 1 All ER 568
,
[1990] 2 AC 605)
, that decision will apply to
all future cases of the same kind. The decision does not depend on
weighing the balance between the
extent of the damage to the
plaintiff and the damage to the public in each particular case.”
3
6
[47]
In
two cases the European Court of Human Rights has found against the
“immunity approach” of the English courts. We
have
already referred to the decision in
Osman
.
3
7
There it was stated:
“
In
their alternative submission the applicants asserted that even if it
could be said that the immunity pursued a legitimate aim
or aims, its
operation offended against the principle of proportionality. They
reasoned in this respect that the immunity was complete
and as such
did not distinguish between cases where the merits were strong and
those where they were weak. In the instant case,
involving the
protection of a child and the right to life and where the damage
caused was grave, the requirements of public policy
could not dictate
that the police should be immune from liability. Furthermore, the
combined effect of the strict tests of proximity
and foreseeability
provided limitation enough to prevent untenable cases ever reaching a
hearing and to confine liability to those
cases where the police have
caused serious loss through truly negligent actions.”
3
8
[48]
The
second case,
Z
and Others v United Kingdom
,
3
9
was the appeal to the European Court of Human Rights from the
decision of the House of Lords in the case of
X
and Others v Bedfordshire County Council
.
4
0
The European Court held that the immunity approach effectively
precluded the plaintiffs from having
“
.
. . available to them an appropriate means of obtaining a
determination of their allegations that the local authority failed to

protect them from inhuman and degrading treatment and the possibility
of obtaining an enforceable award of compensation for the
damages
suffered thereby.”
4
1
This
was found to contravene the provisions of Article 13 of the
Convention,
4
2
and the Court consequently made an award of damages to the
appellants.
[49]
Fears expressed about the chilling effect such
delictual liability might have on the proper exercise of duties by
public servants
are sufficiently met by the proportionality exercise
which must be carried out and also by the requirements of
foreseeability and
proximity. This exercise in appropriate cases will
establish limits to the delictual liability of public officials. A
public interest
immunity excusing the respondents from liability that
they might otherwise have in the circumstances of the present case,
would
be inconsistent with our Constitution and its values. Liability
in this case must thus be determined on the basis of the law and
its
application to the facts of the case, and not because of an immunity
against such claims granted to the respondents.
The
Development of the Common Law Under Section 39(2)
[50]
This
Court has consistently, and in various contexts, confirmed the
importance of judgments on constitutional issues by the high
courts
and the Supreme Court of Appeal in cases to be considered by this
Court. This is a weighty consideration, for example, when
considering
whether to grant direct access
4
3
or to allow an appeal directly to this Court.
4
4
In
Bequinot’s
case
4
5
the following was said on behalf of a unanimous Court:
“
.
. . this Court would have . . . to decide the issue without the
benefit of the wisdom of the Court below. It has been said before
but
needs to be restated that this Court is placed at a
grave
disadvantage
if it is required to deal with difficult questions of law,
constitutional or otherwise, and has to perform the balancing
exercise
demanded by s 33(1) of the Constitution virtually as a court
of first instance.”
4
6
(emphasis supplied).
[51][
There are other public and judicial policy considerations, such as
fairness to the losing litigant, which underpin such an
approach as
was recognised in
Bruce
v Fleecytex
4
7
where the following was stated by this Court:
“
It
is, moreover, not ordinarily in the interests of justice for a court
to sit as a court of first and last instance, in which matters
are
decided without there being any possibility of appealing against the
decision given. Experience shows that decisions are more
likely to be
correct if more than one court has been required to consider the
issues raised. In such circumstances the losing party
has an
opportunity of challenging the reasoning on which the first judgment
is based, and of reconsidering and refining arguments
previously
raised in the light of such judgment.”
4
8
[52]
In
Christian
Education South Africa v Minister of Education
4
9
Langa DP, writing for another unanimous Court, dismissed as having
“no merit” an argument that the aforementioned principle

was less significant where the issue involved a value judgment and
therefore assumed less importance for the interests of justice.
He
stated that:
“
.
. . the exclusion of the other courts from the exercise of a
jurisdiction given to them by the Constitution would clearly not
be
in the general interests of justice and the development of our
jurisprudence.”
5
0
[53]
The
above principles become singularly compelling when the issue is
whether or how the common law is to be developed under section
39(2)
of the Constitution, particularly when this Court has not previously
been required to do so. As this Court stated in
Amod’s
case:
5
1
“
When
a constitutional matter is one which turns on the direct application
of the Constitution and which does not involve the development
of the
common law, considerations of costs and time may make it desirable
that the appeal be brought directly to this Court. But
when the
constitutional matter involves the development of the common law, the
position is different. The Supreme Court of Appeal
has jurisdiction
to develop the common law in all matters including constitutional
matters. Because of the breadth of its jurisdiction
and its expertise
in the common law, its views as to whether the common law should or
should not be developed in a ‘constitutional
matter’ are
of particular importance.”
This
passage was quoted with approval in the
De
Freitas
case.
5
2
[54]
Our Constitution is not merely a formal document
regulating public power. It also embodies, like the German
Constitution, an objective,
normative value system. As was stated by
the German Federal Constitutional Court:
“
The
jurisprudence of the Federal Constitutional Court is consistently to
the effect that the basic right norms contain not only
defensive
subjective rights for the individual but embody at the same time an
objective value system which, as a fundamental constitutional
value
for all areas of the law, acts as a guiding principle and stimulus
for the legislature, executive and judiciary.”
5
3
The
same is true of our Constitution.
5
4
The influence of the fundamental constitutional values on the common
law is mandated by section 39(2) of the Constitution. It is
within
the matrix of this objective normative value system that the common
law must be developed.
[55]
This
requires not only a proper appreciation of the Constitution and its
objective, normative value system, but also a proper understanding
of
the common law. We have previously cautioned against overzealous
judicial reform.
5
5
The proper development of the common law under section 39(2) requires
close and sensitive interaction between, on the one hand,
the High
Courts and the Supreme Court of Appeal
5
6
which have particular expertise and experience in this area of the
law and, on the other hand, this Court. Not only must the common
law
be developed in a way which meets the section 39(2) objectives, but
it must be done in a way most appropriate for the development
of the
common law within its own paradigm.
[56]
There
are notionally different ways to develop the common-law under section
39(2) of the Constitution, all of which might be consistent
with its
provisions. Not all would necessarily be equally beneficial for the
common law.
5
7
Before the advent of the IC, the refashioning of the common law in
this area entailed “policy decisions and value judgments”
5
8
which had to “reflect the wishes, often unspoken, and the
perceptions, often but dimly discerned, of the people.”
5
9
A balance had to be struck between the interests of the parties and
the conflicting interests of the community according to what
“the
[c]ourt conceives to be society’s notions of what justice
demands.”
6
0
Under section 39(2) of the Constitution concepts such as “policy
decisions and value judgments” reflecting “the
wishes . .
. and the perceptions . . . of the people” and “society’s
notions of what justice demands” might
well have to be
replaced, or supplemented and enriched by the appropriate norms of
the objective value system embodied in the Constitution.
[57]
Following this route it might be easier to cast
the net of unlawfulness wider because constitutional obligations are
now placed
on the state to respect, protect, promote and fulfil the
rights in the Bill of Rights and, in particular, the right of women
to
have their safety and security protected. However, it is by no
means clear how these constitutional obligations on the state
translate
into private law duties towards individuals. A consequence
of such an approach might be:
(a) to accentuate the
objective nature of unlawfulness as one of the elements of delictual
liability, particularly in the context
of a bail hearing where the
roles and general duties of investigating officers and prosecutors
are more clearly defined than would
normally be the case;
(b) to define it more
broadly; and
(c) to allow the elements
of fault and remoteness of damage to play the greater role in
limiting liability.
[58]
As
against this there must be other ways of applying section 39(2) in
shaping the common law generally and in determining specifically
the
wrongfulness element of delictual liability for an omission. Our
common law of delict spans many centuries and the debate regarding

delictual liability, its elements and their relationship to one
another, remains lively. Without the benefit of a fully considered

judgment from either the SCA or the High Court as to whether, from
the perspective of the common law, one solution would be better
than
any other, this Court is at a “grave disadvantage”in the
sense indicated in
Bequinot’s
case.
6
1
[59]
The
litigants are also disadvantaged because they have not had the
opportunity of reconsidering or refining their respective arguments

in the light of a prior judgment of the SCA.
6
2
This in itself impacts negatively on the Court’s ability to
make wise and prudent choices. Moreover, the issue in this case
can
hardly be described as an insignificant one, lying at an exotic
periphery of the law of delict. On the contrary, the case raises

issues of considerable importance to the development of the common
law consistently with values of our Constitution.
[60]
In our view the High Court, possibly because of
the way the case was argued before it, misdirected itself in relation
to the constitutional
requirements of section 39(2). In the ordinary
course a court on appeal would, where the trial court has so
misdirected itself,
make the order which that court ought to have
made. In the present case, for the reasons that follow, this can be
done without
pre-empting decisions of the High Court or the SCA as to
whether the circumstances of the present case are such to call for
the
law of delict to be developed, and if so, how this should be
done. To that end we proceed to consider the issues relevant to legal

liability in the context of the evidence given at the trial and the
provisions of the Constitution.
Should
Absolution From the Instance Have Been Granted in the Circumstances
of the Present Case?
[61]
Section 215 of the IC provides that:
“
The
powers and functions of the Service shall be -
(a)
the prevention of crime;
(b)
the investigation of any offence or alleged
offence;
(c)
the maintenance of law and order; and
(d)
(the
preservation of the internal security of the Republic.”
6
3
The
detailed duties of the South African Police Service at the time
relevant to this matter were to be found in the Police Act.
6
4
Section 5 read as follows:
“
The
functions of the South African Police shall be,
inter
alia
—
(a)
the preservation of the internal security
of the Republic;
(b)
the maintenance of law and order;
(c)
the investigation of any offence or alleged
offence; and
(d)
the prevention of crime.”
[62]
Thus
one finds positive obligations on members of the police force both in
the IC and the Police Act. In addressing these 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. As it was put by counsel on behalf of the
amicus
curiae
:
6
5
“
Sexual
violence and the threat of sexual violence goes to the core of
women’s subordination in society. It is the single greatest

threat to the self-determination of South African women.”
She
referred in that context to the following statement by the SCA in the
Chapman
case:
6
6
“
The
courts are under a duty to send a clear message to the accused, to
other potential rapists and to the community. We are determined
to
protect the equality, dignity and freedom of all women, and we shall
show no mercy to those who seek to invade those rights.”
South
Africa also has a duty under international law to prohibit all
gender-based discrimination that has the effect or purpose
of
impairing the enjoyment by women of fundamental rights and freedoms
and to take reasonable and appropriate measures to prevent
the
violation of those rights.
6
7
The police 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.
[63]
In the present case the complaint against Klein
(the investigating officer in E’s case) is not that he was
guilty of a mere
omission. Coetzee was in custody and Klein had a
clear duty to bring to the attention of the prosecutor any factors
known to him
relevant to the exercise by the magistrate of his
discretion to admit Coetzee to bail. He made a positive
recommendation that Coetzee
should be released on warning in the
clear knowledge that the prosecutor would act on such recommendation.
[64]
When Klein informed the prosecutor that Coetzee
should be released on warning he had interviewed both E and Coetzee.
He was aware
of the allegation (exaggerated as it may have been) that
Coetzee had a previous conviction for rape. On the day after the
attack
on E, Klein took a statement from Coetzee. It is not clear
from the record of the proceedings in the High Court what information

was given to him by Coetzee. It was submitted on behalf of the
applicant that there was a probability that Coetzee would have given

Klein the information he later gave to Louw. For the purpose of an
application for absolution from the instance we consider that
a
reasonable court might be prepared to make that assumption in favour
of the applicant.
[65]
There appears to be no question that at all times
after the attack on E, Coetzee admitted that he was the perpetrator
of a violent
sexual attack on her. That, too, was a relevant
consideration. Coetzee already had a suspended sentence hanging over
him for a
sexual assault. In the circumstances, and in the light of
his admission, less weight than is normally given would have been
attached
to the presumption of innocence and to the right to freedom
and security of the person in determining where the interests of
justice
lay as far as bail was concerned.
[66]
Klein was aware that if released Coetzee would
return to his mother’s home in the secluded setting of Noetzie.
If there was
a risk of a repeat attack on a woman, those living in
the vicinity of the Coetzee home would be most vulnerable if Coetzee
was
released. According to Gosling and the applicant they certainly
perceived themselves to be in such a position. It was also known
to
Klein that the previous attacks by Coetzee had been committed against
women who knew him. The issue here is whether, given these
facts and
the constitutional protection to which the applicant was entitled,
Klein’s advice to the prosecutor that Coetzee
be released on
his own recognisances was unlawful.
[67]
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.
[68]
When Coetzee was returned in custody from
Valkenberg and appeared before the magistrate on 18 April 1995, Louw
(the senior prosecutor)
was aware of the material facts relating to
Coetzee’s history of criminal conduct. She had indeed noted
them at the time
of the referral of Coetzee to Valkenberg. Those
facts disclosed that Coetzee had on two occasions perpetrated crimes
of a sexual
nature on women who were known to him. The second one was
accompanied by brutal violence. Furthermore, Coetzee acknowledged
that
he had great difficulty in controlling his sexual impulses. This
is borne out by the fact that his victims were known to him and
his
apprehension was inevitable. Louw was also aware that there were very
few women living in the seclusion of Noetzie and that
they were
concerned for their safety and had strong feelings that Coetzee
should not have been allowed back into their community.
[69]
With
his consent, Coetzee was committed to Valkenberg on 15 March 1995 and
for that purpose was taken into custody. A committal
order was made
under the provisions of section 77 of the Criminal Procedure Act.
6
8
It was necessary, therefore, at the end of the period of observation
at Valkenberg, for Coetzee again to appear in the magistrate’s

court. Olivier, the prosecutor on that occasion, apparently did not
apply for him to be kept in custody and he was again released
on his
own recognisance.
[70]
The SCA dealt with the matter on the basis that
the magistrate had the power to withdraw the earlier order releasing
Coetzee on
his own recognisance and reconsider the question of bail.
Vivier JA said the following:
“
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. The essential enquiry is, first,
whether the
alleged legal duty was owed by the police and prosecutors with regard
to Coetzee’s release on 18 April 1995 and,
secondly, whether
the prosecutors owed the appellant a legal duty to secure his
rearrest following the complaints on 20 June 1995
and 2 August 1995.
With
regard to Coetzee’s release on 18 April 1995 it was obviously
the magistrate’s decision whether to release him
or not, so
that the legal duty contended for must be confined to a duty, on the
part of the police, to provide the prosecutor with
full information
and a duty, on the part of the prosecutor, to oppose bail and to give
the court full information relevant to Coetzee
being remanded in
custody or released.”
6
9
[71]
This
conclusion that the magistrate could at that hearing have withdrawn
the previous order releasing Coetzee on warning was not
challenged in
this Court and for the purposes of this judgment we consider it
prudent to deal with the matter on the basis that
the SCA did.
7
0
The
Case Against the Prosecutors
[72]
The
IC did not contain any provisions dealing with prosecutors. Section
108(1) provided only that the authority to institute criminal

prosecutions on behalf of the state vested in attorneys-general.
Under section 108(2) the powers, duties and functions of
attorneys-general
were to be prescribed by law.
7
1
However, prosecutors have always owed a duty to carry out their
public functions independently and in the interests of the public.
7
2
Although the consideration of bail is pre-eminently a matter for the
presiding judicial officer,
7
3
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.
[73]
In
considering the legal duty owed by a prosecutor either to the public
generally or to a particular member thereof, a court should
take into
account the pressures under which prosecutors work, especially in the
magistrates’ courts. Care should be taken
not to use hindsight
as a basis for unfair criticism. To err in this regard might well
have a chilling effect on the exercise by
prosecutors of their
judgment in favour of the liberty of the individual. There are far
too many persons awaiting trial in our
prisons either because bail
has been refused or because bail has been set in an amount which
cannot be paid. We can do no better
in this regard than refer to the
following passage which appears in the
United
Nations Guidelines on the Role of Prosecutors
:
7
4
“
In
the performance of their duties, prosecutors shall:
(a) . . .
(b) Protect the public
interest, act with objectivity, take proper account of the position
of the suspect and the victim and pay
attention to all relevant
circumstances, irrespective of whether they are to the advantage or
disadvantage of the suspect; . .
.”
[74]
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.
Causation
[75]
Counsel
for the respondents submitted that at the relevant time in 1995,
magistrates interpreted the provisions of the IC as requiring
them to
grant bail unless the state could establish that the interests of
justice required the accused to be kept in custody.
7
5
He relied on the evidence of the magistrate, Mr K J Von Bratt, in
support of the submission that even if Klein’s information
had
been placed before him, he would in any event have released Coetzee.
Mr Von Bratt was called as a witness by the applicant.
He stated that
had he been informed of Coetzee’s previous conviction in the
light of the charge involving E, he would have
held an inquiry into
the question of bail. He was not asked to take that any further.
Under cross-examination he stated that at
that time in 1995:
“
.
. . there was very much a renewed emphasis on personal freedom at
that stage, which did play a role . . .”
He
added that in consequence people were allowed out on their own
recognisances more readily than prior to the coming into operation
of
the IC and that this also related to persons accused of serious
offences such as murder and rape and that the state would have
had to
have produced substantial grounds for keeping an accused in prison.
In re-examination he said that bail would have been
refused if he had
been of the view that Coetzee’s previous conviction had been a
serious one and that there was a risk of
his committing a further
offence.
[76]
It may well be that in deciding whether a
magistrate could or might have refused to release Coetzee on bail an
objective test must
be applied, and that the evidence of the
magistrate who happened to have been seized with the matter is
neither relevant nor admissible.
On this approach the court would
have regard to the law as it should have been applied by a reasonable
magistrate on the facts
given to him by the prosecutor. The question
of causation, in the event of the conduct of either the police or the
prosecutors
being unlawful, was not considered by the High Court or
the SCA. This too is a complex issue that may ultimately depend on
the
facts as they emerge at the end of the case.
[77]
Not having the benefit of the views of the High
Court or the SCA, or argument from counsel in this Court on the
admissibility of
Von Bratt’s evidence, it is not desirable that
this Court should express a firm view as to either the proper test to
be applied
in determining this issue or on the application of the
correct test to the facts established on the applicant’s
evidence.
Nor in the light of the decision to which we have come, is
it necessary for us to do so. The evidence is in our view sufficient

to justify a conclusion that if bail had been opposed and if all
relevant information pertaining to Coetzee’s background
and
sexual problems had been placed before the magistrate, bail might
have been refused. That is sufficient to put the respondents
on their
defence in relation to this issue.
What
Should this Court do in these Circumstances?
[78]
The issue confronting this Court is whether, in
the special circumstances of this case, it should itself decide if
the law of delict
should be developed to afford the applicant a right
to claim damages if the police or the prosecutor were negligent, or
whether
this should be left to the High Court or the SCA to
determine.
[79]
An
order for absolution from the instance is an appropriate order to
make at the end of the plaintiff’s case where a court,
applying
its mind reasonably to the evidence, could not or might not find for
the plaintiff.
7
6
The underlying reason is that it is ordinarily in the interests of
justice to bring the litigation to an end in such circumstances.
7
7
A determination of what is in the interests of justice necessarily
involves the exercise of a discretion.
7
8
[80]
In
Minister
of Law and Order v Kadir
,
7
9
Hefer JA made the following comment, with which we are in respectful
agreement, concerning the approach to be adopted by courts
when they
are asked to develop the common law:
Decisions
like these can seldom be taken on a mere handful of allegations in a
pleading which only reflects the facts on which one
of the contending
parties relies. In the passage cited earlier
Fleming
rightly stressed the interplay of many factors which have to be
considered. It is impossible to arrive at a conclusion except upon
a
consideration of
all
the circumstances of the case and every other relevant factor. This
would seem to indicate that the present matter should rather
go to
trial and not be disposed of on exception. On the other hand, it must
be assumed - since the plaintiff will be debarred from
presenting a
stronger case to the trial Court than the one pleaded - that the
facts alleged in support of the alleged legal duty
represent a
high-water mark of the factual basis on which the Court will be
required to decide the question. Therefore, if those
facts do not
prima
facie
support the legal duty contended for, there is no reason why the
exception should not succeed.
8
0
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 te 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.
[81]
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.
[82]
This matter has already passed through three
courts and it is desirable that it be brought to a head without
further unnecessary
delay. The High Court will deal with the matter
on the basis of the facts as determined by it.
[83]
The appropriate order is 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. That
is likely to lead to a final determination of the issues with the
least
delay. The application for leave to appeal must consequently be
granted and the appeal must succeed.
The
Order
[84]
The following order is made:
1. The application for
special leave to appeal is granted with costs.
2. The appeal is upheld
with costs.
3. The order of the
Supreme Court of Appeal is set aside and the following order is
substituted for that of the High Court:
“
The
application for absolution from the instance is dismissed with
costs.”
4. The matter is referred
back to the High Court so that the trial may continue.
5. The costs orders
referred to in 1 and 2 above are to include those of two counsel.
Chaskalson
P, Kriegler J, Madala J, Mokgoro J, Ngcobo J, Sachs J, Yacoob J,
Madlanga AJ and Somyalo AJ concur in the judgment of
Ackermann and
Goldstone JJ.
For
the applicants:
W Trengove SC and AM Breitenbach instructed
by Buchan Mosdel and
Pama, Knysna and Bowman Gilfillan Inc. Sandton.
For the
respondents:          JA
Le Roux SC and R Jaga instructed by the State Attorney,
Cape Town and
the State Attorney, Johannesburg.
For the
amicus curiae
:
J Kentridge instructed by the Wits Law Clinic, Johannesburg.
1
The
judgment of the SCA is reported as
Carmichele
v Minister of Safety and Security and Another
[2000] ZASCA 149
;
2001 (1) SA 489
(SCA).
2
[2000] ZACC 25
;
2001
(1) SA 912
(CC);
2001 (1) BCLR 36
(CC) at paras 10-15.
3
Id
at para 11.
4
Id
at para 12.
5
Id
at para 14. Section 39(2) of the Constitution provides that:
“
When
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote
the
spirit, purport and objects of the Bill of Rights.”
The
corresponding provision of the Interim Constitution (IC) (Act 200 of
1993), section 35(3), provided:
“
In
the interpretation of any law and the application development of the
common law or customary law, a court, shall have due regard
to the
spirit, purport and objects of this Chapter.”
6
E
T is referred to by her first name to avoid confusion with her
mother to whom reference is made later in this judgment.
7
Act
51 of 1977.
8
Although
the referral was only in terms of section 77(1) of the Criminal
Procedure Act, which relates to whether the accused is
capable of
understanding the proceedings in question so as to make a proper
defence, it appears from the record that Valkenberg
treated the
enquiry as also having been made under section 78(2), which relates
to whether the accused “is by reason of
mental illness or
mental defect not criminally responsible for the offence charged.”
9
Gordon
Lloyd Page & Associates v Rivera and Another
2001 (1) SA 88
(SCA) at 92E-93A.
10
[1997] ZASCA 45
;
1997
(3) SA 341
(A) at 344J-45B, per Mohamed CJ, and Van Heerden and
Olivier JJA.
11
Cole
v Government of the Union of S.A.
1910 AD 263
at 272-73;
Paddock
Motors (Pty) Ltd v Igesund
1976
(3) SA 16
(A) at 23B-24G.
12
See
paras 41, 50 et seq and 78 et seq.
13
Above
n 5.
14
Section
7(2) of the IC provided that:
“
This
Chapter shall apply to all law in force . . . during the period of
the operation of this Constitution.”
15
Since
the Bill of Rights applies to all law, and there is no material
difference between section 35(3) of the IC
and
section 39(2) of the Constitution, it is unnecessary to consider in
this case whether the principle of non-retrospectivity
applies. See
Du
Plessis and Others v De Klerk and Another
[1996] ZACC 10
;
1996
(3) SA 850
(CC);
1996 (5) BCLR 658
(CC) at paras 15-24.
16
Section
173 provides:
“
The
Constitutional Court, Supreme Court of Appeal and High Courts have
the inherent power to protect and regulate their own process,
and to
develop the common law, taking into account the interests of
justice.”
17
As
emerges from the provisions of section 35(3) of the IC and section
39(2) of the Constitution, the development of the common
law will
not be different whether we “have regard to” or
“promote” the “spirit, purport and objects”

of the respective Bills of Rights.
18
Du
Plessis v De Klerk
,
above n 15 at paras 65-66;
Gardener
v Whitaker
[1996] ZACC 11
;
1996
(4) SA 337
;
1996 (6) BCLR 775
(CC) at paras 16-18.
19
See
Minister
van Polisie v Ewels
1975 (3) SA 590
(A) at 596G-97H. See also
Administrateur,
Natal v Trust Bank van Afrika Bpk
1979 (3) SA 824
(A) at 828H-29B;
Marais
v Richard
En
‘n Ander
1981
(1) SA 1157
(A) at 1166H-67A;
Pakendorf
En Andere v De Flamingh
1982 (3) SA 146
(A) at 157E-58G; and
Schultz
v Butt
1986 (3) SA 667
(A) at 681D-83I.
20
(1992)
8 CRR (2d) 173.
21
Above
n 15 at para 61.
22
See
S
v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at para 262 per Mahomed
J.
23
Amod
v Multilateral Motor Vehicle Accidents Fund
[1998] ZACC 11
;
1998 (4) SA 753
(CC);
1998 (10) BCLR 1207
(CC) at para 22.
24
Brink
v Kitshoff NO
[1996] ZACC 9
;
1996 (4) SA 197
(CC);
1996 (6) BCLR 752
(CC);
S
v Baloyi (Minister of Justice and Another Intervening)
[1999] ZACC 19
;
2000 (2) SA 425
(CC);
2000 (1) BCLR 86
(CC);
S
v Chapman
,
above n 10.
25
Above
n 5.
26
Above
n 1 at para 7.
27
[1994] ZASCA 138
;
1995
(1) SA 303
(A) at 318E-H.
28
Section
9 of the IC; Section 11of the Constitution.
29
Section
10 of the IC and the Constitution.
30
Section
11 of the IC; Section 12 of the Constitution.
31
489
US 189
(1988).
32
Id
at 204.
33
29
EHHR 245 at 305, para 115.
34
In
the case of
Hill
v Chief Constable of West Yorkshire
[1989]
1 AC 53
(HL) the House of Lords found it necessary to protect the
police from delictual claims on the view that the interests of the

community as a whole are best served by a police force that is not
diverted and prejudiced by being diverted from its primary duties
by
the exposure to such liability.
“
The
result would be a significant diversion of police manpower and
attention from their most important function, that of the
suppression of crime.”
Per Lord Keith of Kinkel
at 63G. Similar considerations led the House of Lords to deny claims
against local authorities for negligence
in respect of the discharge
of their functions concerning the welfare of children in
X and
Others v Bedfordshire County Council
[1995] UKHL 9
;
[1995] 2 AC 633
(HL) per
Staughton LJ at 674H-75G, and per Peter Gibson LJ at 681G-H.
35
[1999]
3 All ER 193.
36
Id
at 199d-j.
37
Above
n 33.
38
Id
at 314, para 142.
39
Application
no 29392/95, 10 May 2001, as yet unreported.
40
Above
n 34.
41
Id
at para 111.
42
Article
13 provides:
“
Everyone
whose rights and freedoms as set forth in this Convention are
violated shall have an effective remedy before a national
authority
notwithstanding that the violation has been committed by persons
acting in an official capacity.”
43
See,
for example,
Transvaal
Agricultural Union v Minister of Land Affairs and Another
[1996] ZACC 22
;
1997 (2) SA 621
(CC);
1996 (12) BCLR 1573
(CC) at para 18;
S
v Bequinot
[1996] ZACC 21
;
1997 (2) SA 887
(CC);
1996 (12) BCLR 1588
(CC) at para 15;
Bruce
and Another v Fleecytex Johannesburg CC and Others
[1998] ZACC 3
;
1998 (2) SA 1143
(CC);
1998 (4) BCLR 415
(CC) at para 8;
Christian
Education South Africa v Minister of Education
1999 (2) SA 83
(CC);
1998 (12) BCLR 1449
(CC) at paras 8 and 12; and
Dormehl
v Minister of Justice and Others
2000 (2) SA 987
(CC);
2000 (5) BCLR 471
(CC) at para 5.
44
See,
for example,
Amod
v Multilateral Motor Vehicle Accidents Fund
,
above n 23 at para 33;
Member
of the Executive Council for Development Planning and Local
Government, Gauteng v Democratic Party and Others
[1998] ZACC 9
;
1998 (4) SA 1157
(CC);
1998 (7) BCLR 855
(CC) at paras 31-32; and
De
Freitas and Another v Society of Advocates of Natal (Natal Law
Society Intervening)
1998 (11) BCLR 1345
(CC) at paras 20-21.
45
Above
n 43.
46
Id
at para 15 citation omitted.
47
Above
n 43.
48
Id
at para 8.
49
Above
n 43.
50
Id
at para 9.
51
Above
n 44 at para 33.
52
Above
n 44 at para 21.
53
BVerfGE
39, 1at 41 and
Du
Plessis and Others v De Klerk and Another
,
above n 15 at para 94.
54
Compare
also the remarks of Mahomed AJ in
S
v Acheson
1991 (2) SA 805
(NmHC) at 813B.
55
Above
para 36.
56
It
is unnecessary for purposes of this case to consider the position of
the magistrates’ and other courts.
57
The
way English law approaches the development of the common law in this
context is illustrated by, for example, the decisions
in
Home
Office v Dorset Yacht Co. Ltd
[1970]
AC 1004
(HL);
Hill
v Chief Constable of West Yorkshire
above
n 34;
Barrett
v Enfield London Borough Council
above n 35; and
Lancashire
County Council and another v A (a child)
[1999] UKHL 17
;
[2000] AC 147
(HL). By contrast the development of the private law
in Germany in the present context is through the indirect horizontal
operation
of the German Basic Law on private legal relationships.
This so-called “radiating effect” of the Basic Law
operates
through the “general clauses” of the German
Civil Code, such as clauses which refer to “good morals,”
“justified,” “wrongful,” “contra bonos
mores,” “good faith” and so forth; and
could even
operate in respect of private law rules which are unclear (see
Du
Plessis and Others v De Klerk and Another
,
above n 15 at paras 39-40; 93-94; 103-05 and the authorities
referred to therein).
58
Minister
of Law and Order v Kadir
,
above n 27 at 318E.
59
Id
at 318F, quoting with approval from Corbett “Aspects of the
Role of Policy in the Evolution of our Common Law”
(1987) 104
SALJ
52
at 67.
60
Minister
of Law and Order v Kadir
,
above n 27 at 318G. The phrases quoted in the paragraph of text
following this footnote are all from the longer quotation cited
at n
27 above.
61
In
the passage quoted therefrom in para 50 of this judgment.
62
See
Bruce
v Fleecytex
,
above n 44 at para 8.
63
The
provisions of the Constitution are more explicit. Section 7(2)
provides that:
“
The
state must respect, protect, promote and fulfil the rights in the
Bill of Rights.”
Section 41(1)(b) further
provides that:
“
All
spheres of government and all organs of state within each sphere
must:
. . .
secure
the well-being of the people of the Republic;”
Chapter
11 makes provision for Security Services. Section 198(a) provides
that:
“
.
. . National security must reflect the resolve of South Africans, as
individuals and as a nation, . . .to be free from fear.
. .”
And,
section 205(3) reads as follows:
“
The
objects of the police service are to prevent, combat and investigate
crime, to maintain public order, to protect and secure
the
inhabitants of the Republic and their property, and to uphold and
enforce the law.”
64
Act
7 of 1958 which was replaced by the
South African Police Service Act
68 of 1995
which commenced on 15 October 1995.
65
The
Centre for Applied Legal Studies (CALS), an organisation based at
the University of the Witwatersrand, which conducts research
and
engages in advocacy, litigation and training for the promotion and
protection of human rights in South Africa. CALS has a
Gender
Research Project which focuses specifically on questions of women’s
human rights and sex and gender equality, with
particular reference
to the promotion of equality for disadvantaged groups of women.
66
Above
n 10 at 345C-D.
67
The
Convention on the Elimination of All Forms of Discrimination Against
Women, commonly known by its acronym CEDAW, was adopted
in General
Assembly Resolution 34/180 on 18 December 1979. See articles 1, 2,
3, 6, 11,12 and 16. The Convention was signed by
South Africa on 29
January 1993 and ratified on 15 December 1995. The United Nations
Committee on the Elimination of Discrimination
Against Women, which
was established under the Convention, recommended in 1992 that:
“
.
. .States may also be responsible for private acts if they fail to
act with due diligence to prevent violations of rights or
to
investigate and punish acts of violence, and for providing
compensation.”
See General
Recommendation 19, U.N. GAOR, Committee on the Elimination of
Discrimination Against Women, 11
th
sess. (1992). See
generally a helpful article by Heléne Combrinck, “Positive
State Duties to Protect Women from
Violence: Recent South African
Developments”
(1998) 20
Human Rights Quarterly
666-690.
And see
S v Baloyi
, above n 24 at para 13.
68
Above
n 7.
69
Above
n 1 at paras 14-15.
70
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.
71
Under
the Constitution section 179 deals more explicitly with the
“prosecuting authority.” It is provided, inter alia,
in
section 179(4) that national legislation must ensure that the
prosecuting authority exercises its functions without fear,
favour
or prejudice. The national legislation is to be found in the
National Prosecuting Authority Act 32 of 1998
. Section 32(1) of the
Act reads as follows:
“
(a)
A member of the
prosecuting authority
shall serve impartially and exercise, carry out or perform his or
her powers, duties and functions in good faith and without
fear,
favour or prejudice and subject only to the
Constitution
and the law.
(b)
Subject to the
Constitution
and
this Act
, no organ of
state and no member or employee of an organ of state nor any other
person shall improperly interfere with, hinder
or obstruct the
prosecuting authority
or any member thereof in the exercise,
carrying out or performance of its, his or her powers, duties and
functions.”
72
See
R
v Riekert
1954 (4) SA 254
(SWA) at 261D-E;
S
v Jija and Others
1991 (2) SA 52
(E) at 67J-68A, and
S
v Van Huyssteen
[2000] 3 All SA 439
(C) at para 11. Australia:
Lawless
v R
[1979] HCA 49
;
(1979) 26 ALR 161
at 176-77;
R
v Hall
(1979) 28 ALR 107
at 112. Canada:
Boucher
v The Queen
,
(1954) 110 CCC 263
at 270;
Bain
v The Queen
(1992) 87 DLR (4
th
)
449 at 463-65. England:
R
v Brown
[1997] UKHL 33
;
[1997] 3 All ER 769
(HL) at 778. India:
S.B.
Shahane v State of Maharashtra
AIR 1995 SC 1628
at 1629-31. United States:
Imbler
v Pachtman, District Attorney
[1976] USSC 26
;
424 US 409
, 423 (1976).
73
S
v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (4) SA 623
(CC);
1999 (7) BCLR 771
(CC) at paras 41-43;
Ellish
en Andere v Prokureur-Generaal, Witwatersrandse Plaaslike Afdeling
1994 (4) SA 835
(W) at 849E-F.
74
Adopted
by the 8
th
United Nations Congress on the Prevention of Crime and the Treatment
of Offenders held in Havana, Cuba from 17 August - 7 September
1990.
These guidelines have been incorporated by reference in our law by
section 22(4)(f)
of the
National Prosecuting Authority Act 32 of
1998
, which requires the National Director to bring them to the
attention of Directors and prosecutors and promote their respect for

and compliance with those principles.
75
See
Du Toit et al
Commentary
on the Criminal Procedure Act
(Juta, Cape Town 1987, revision service update 24, 2000) at 9-7; and
Ellish
en Andere v Prokureur-Generaal, Witwatersrandse Plaaslike Afdeling
,
above n 73 at 846H-J.
76
Above
para 26.
77
Mazibuko
v Santam Insurance Co Ld and Another
1982
(3) SA 125
(A) at 134E-35A;
Putter
v Provincial Insurance Co Ltd. and Another
1963 (4) SA 771
(W) at 772F-G;
Ardecor
(Pty) Ltd v Quality Caterers (Pty) Ltd and Others
1978 (3) SA 1073
(N) at 1076G-77C.
78
Ardecor
,
id at 1077C-F. Compare
Young
v Rank and Others
[1950]
2 KB 510
at 511-13.
79
Above
n 27.
80
Id
at 318G-J.