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A blow for the little guy

Once in a while one gets the uplifting feeling that the law does work for the small guy and, no matter how high powered the opponent may be, justice does prevail.

Too often the public has been left with a bitter taste in the mouth and the feeling that justice is an expensive commodity. Many of those who see themselves maligned by the law have taken matters into their own hands — often ending up answering to a justice system they regard as foreign.

In many cases the courts are at fault for failing to engage with a public that does not read law reports and yet is Justice System (Pty) Ltd’s biggest shareholder.

Consequently, some of its most watershed and exciting decisions have ended up as mere legal jargon that Joe Average could not be bothered with, unless he found himself in a sticky situation.

That is why this column will start off by celebrating decisions that the taxi passenger, the law professor and the quadriplegic should all be able to relate to.

Last month the Supreme Court of Appeal (SCA) made a ground-breaking decision, finding that the safety and security minister, as the political head of the police, was delictually liable if the police did not “exercise reasonable care in considering, investigating and recommending” an application for a firearm licence.

The ruling meant that the minister will defend a R19-million lawsuit from Ian Hamilton, who is now a tetraplegic and is permanently wheelchair-bound after being shot by a mentally deranged woman with a gun licence.

It was not the first time that the courts had reminded state institutions of their legal and moral duties, and to act with care.

In September last year the SCA ruled in the Ghia van Eeden case that the state had a legal duty to prevent known and dangerous criminals from escaping from police custody. Criminals have not stopped escaping from custody, but for a public seeking a reassurance that the law is on their side the judgement was most welcome.

In another case last year the SCA held that the responsible authorities and personnel at a mental hospital owed a legal duty to members of the public to take reasonable steps to prevent mental patients from leaving the hospital premises and causing the public harm.

In 2001 the Constitutional Court struck another blow for the little guy.

It found that the police and the prosecutor owed a duty of protecting Knysna rape survivor Alix Carmichele’s rights to dignity, freedom and security of the person. The Constitutional Court also developed the common law regarding the state’s duty to protect women from sexual violence.

The case had been brought to the court because the prosecutor and a police investigating officer had recommended that a suspect with a history of sexual violence be released without bail.

It was while out on his own cognisance that he raped Carmichele.

The Constitutional Court in that case held that simple diligence on the part of the prosecutor and the police should have alerted the authorities to the fact that the guy had a dangerous predisposition and that keeping him locked up was not such a bad idea.

These decisions, which unfortunately are at a cost to the taxpayer, are not only watershed because of their jurisprudential implications, but because they remind the powers that be that it will no longer be business as usual.

But there is still a lot of work to be done.

These judgements will be worth the voluminous paper they are written on only when the guy who sells a driver’s licence to a person who cannot drive is made answerable to the road accident victims of his client.

When the municipalities are made to pay for leaving open ditches in townships, all in the name of development, causing children to drown in them when they become impromptu swimming pools, public interest law (as all law ought to be) will become what its name intended.

These judgements ought to send a clear message to the staff and authorities at these institutions that, if they do not take what courts call reasonable steps, they will be made to pay.

The cases listed here pertain to public institutions, but the private sector had better be warned that it too will sooner or later be held accountable when its indifference leads to public disquiet.

They need only refer to the Transnet case in the SCA last month. The court found that contrary to an earlier Cape High Court judgement, the transport parastatal’s subsidiary Spoornet was not a law enforcement agency and could therefore not be held liable for crimes committed in its trains.

Briefly, that case was brought by a concerned rail commuters’ grouping and others who had lost relatives in train violence. The SCA described the application as “the culmination of a desperate attempt by a group of concerned members of the public to do something about what they perceive to be the unacceptably high, and escalating, level of violence and lawlessness on commuter trains in the Western Cape”.

That week angry commuters in Johannesburg torched several train coaches because their trains were running late and nobody had been informed. In the court of public opinion, Spoornet had failed to deliver what its customers believed it owed them.

Sometimes things are not legally actionable, but in a society where lawyers are in the minority, it is far more damning when they are morally reprehensible.

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