No one who has followed the Alix Carmichele case will accuse the South African legal system of being speedy and cheap. The litigation took more than eight years to complete.
Carmichele was savagely attacked by one Francois Coetzee on August 6 1995 in the secluded beauty that is the small village of Noetzie, outside of Knysna. She instituted proceedings against the ministers of justice and safety and security on the grounds that the responsible police and prosecutors failed to comply with a legal duty to take steps to prevent Coetzee from causing her harm.
In brief, Coetzee had been charged with rape after he had brutally attacked a school friend, punching her into a state of unconsciousness and leaving her for dead. He was released on his own recognisance without the magistrate being informed of a previous conviction of housebreaking and indecent assault. It was while awaiting trial that Coetzee struck, yet again. This time the victim was Carmichele, who was fortunate to escape with her life.
The litigation was first heard in the Cape High Court, which decided to grant absolution to the ministers.
Carmichele was forced to appeal unsuccessfully to the Supreme Court of Appeal and finally with success to the Constitutional Court. The case went back to the High Court and then on appeal by the state to the Supreme Court of Appeal. Eight years later, Carmichele finally won an important victory.
The final judgement by the Supreme Court of Appeal was handed down by Judge Louis Harms, who ironically, if newspaper reports are correct, had uttered some unfortunate remarks about the rape.
But whatever the lack of felicity in the learned judge’s language, he has authored a most important and progressive judgement in the Carmichele matter.
Judge Harms confirms previous judgements of recent origin that, where a litigant in the position of Carmichele has no other effective remedy against the state, an action for damages is the norm unless policy considerations dictate otherwise. To an extent the court left this test ambiguous, in that it suggests a distinction between an incorrect exercise of a discretion by a state official (not actionable) and a failure by this official to perform a duty imposed on the state by the Constitution (actionable).
In this case the court held that a duty existed on the state to protect Carmichele, being part of a class of persons living in the area who were potential victims of another attack by Coetzee.
The court also decided that the responsible officials ought to have foreseen that a failure on their part to place all available information about Coetzee before the magistrate and their omission to ensure that he remained behind bars pending his trial could have led to a further crime of violence being committed by Coetzee. Regarding the requirement that there be a causal link between this negligence and the damages suffered by Carmichele, Judge Harms, in a part of the judgement that will hardly be classified as a model of legal clarity, nonetheless found that the magistrate would have probably refused bail had he been appraised of all relevant facts about Coetzee.
The quibbles about the judgement aside, Carmichele successfully held the state accountable for its failure to protect her. The Supreme Court of Appeal has struck an important blow in favour of public accountability. But this case could not have been won without the dedication of her attorneys and the consummate forensic skill of this country’s foremost advocate, Wim Trengove.
The troubling question that remains after this important victory concerns the ability of ordinary South Africans, who are not as fortunate as Carmichele in their ability to access such a dedicated and highly skilled legal team, to be able to mount this kind of litigation when they wish to hold powerful public agencies accountable to the promises of the Constitution.