Serjeant at the bAR
In 1995, 28-year-old Alix Carmichele was viciously attacked in the secluded beauty of Noetzie, a village known to the thousands of people who make their way to Plettenberg Bay and Knysna during the December holiday period.
Her attacker was arrested, convicted and sentenced to an effective 12 and a half years. Carmichele sued the police and prosecution for damages which she claimed were caused by their failure to protect her from a man with a history of sexual violence.
Briefly, the background to her case was as follows.
The assailant, Francois Coetzee, had already been convicted of indecent assault when he assaulted another young woman, leaving her for dead.
When Coetzee arrived at his mother’s home in Noetzie, having been unconditionally released, there was understandable anxiety among the residents.
A friend of Carmichele requested the police to detain Coetzee as he would “obviously commit this crime again”.
After an interview with the senior prosecutor at Knysna, Coetzee was sent for psychiatric observation. Further representations were made to both prosecution and police to detain Coetzee pending his trial on a charge of rape but no action was taken.
Four days after a final attempt to persuade the authorities to apprehend Coetzee, the fears of residents came true. Coetzee savagely attacked Carmichele.
That she managed to escape after a brutal assault was the only surprise of the tragic saga in which she had been so appallingly let down by the authorities.
In Carmichele’s damages claim against the ministers of safety and security and justice she contended that the prosecutors and police who had dealt with the case owed her a legal duty of protection and had acted in breach thereof.
At the end of the evidence which was led on behalf of Carmichele, Judge Dayalin Chetty found that there was no legal basis for such an action that the relevant authorities did not owe Carmichele any duty of protection. That meant that the ministries did not need to defend themselves by putting their case to the court.
The Supreme Court of Appeal displayed an almost breathtaking analytical myopia and concurred in this decision.
The judgement of Judge Werner Vivier is truly a legal thing to behold. It amounts to six and a half pages of the law reports, of which less than two pages deal with the important legal question of the duty of care. There is no mention of the Constitution and its influence upon what constitutes wrongful conduct. Even the references to foreign law are at least five years out of date.
With great tenacity Carmichele took her case to the Constitutional Court.
Judges Laurie Ackermann and Richard Goldstone, writing for a unanimous court, said that the Constitution embodies an objective, normative value system which must shape our common law.
In the context of this case, consideration must be given to the constitutional obligation on the state to respect, protect, promote and fulfil the rights in the Bill of Rights, including the right of women to have their safety and security protected.
On this basis the judges came to the following conclusion: “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.”
The court found that the law, read within the normative framework of the Constitution, could sustain the kind of action brought by Carmichele and sent the case back to the trial court so that the trial can continue.
The ministries now have a case to answer.
This decision represents a watershed in our legal development. It insists that there is no legal apartheid between a Roman-Dutch system of private law and its value system, and the Constitution and the value system promoted therein.
It sets out legal principles in which the state can be held accountable for failure to fulfil its constitutional mandate.
To those who will say this case opens up the floodgates of litigation against an impoverished state: the court makes it clear that a litigant will have to prove, in addition to the existence of a legal duty owed, that the official was at fault and that such fault caused the injury or damage suffered.
While success in such actions will often be difficult, this decision will help shape our law in the direction of being more responsive to the people whom the state is designed to serve.
LETTERS