Carmichele (“Plaintiff”), a woman, was viciously assaulted by a man, Coetzee (“Accused”), who had a history of assaults. At the time of the attack, the Accused was facing a rape charge but was released without bail, despite attempts from several individuals to persuade the police and the senior public prosecutor that the Accused should not be released. It was during the time that the Accused was at liberty, awaiting trial, that he assaulted Plaintiff. Plaintiff brought an action against the relevant ministers for alleged dereliction of duty by the police and the prosecutor. The High Court dismissed the case, finding that a duty of care was not prima facie established. Plaintiff appealed to the Supreme Court of Appeal, which upheld the High Court’s ruling. Plaintiff subsequently applied to the Constitutional Court.
At issue in this case was whether the police or prosecutors owed a duty of care to a victim of sexual violence, and, if so, whether that standard of care was breached.
The Court noted that Section 173 of the South African Constitution gives all higher courts the inherent power to develop the common law in the interests of justice. 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. The Court held that it follows implicitly that where the common law does deviate from this standard, the courts have an obligation to act. In deciding whether a duty of care existed in this case, the Court looked to the relevant statutory provisions that imposed positive obligations on members of the police force to preserve freedom and security.
The Court noted that in addressing such 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.” The Court also recalled South Africa’s duty under international law to prohibit all gender-based discrimination. The Court noted that the police is one of the primary agencies of the state responsible for the protection of the public in general, and women in particular, against the violation of their fundamental rights by perpetrators of violent crime. The Court found that the police, therefore, had a duty toward the Plaintiff and that under the facts of the case, had breached that duty.
The Court remanded the case back to High Court to consider whether under these particular facts, the police and the prosecutors had breached their duty of care.
The Court further held that although the legislature is responsible for law reform, courts are under a general duty to develop the common law where it deviates from the spirit, purport, and objects of the fundamental rights provisions.
The Court concluded that common law must be developed consistently with the objectives and purposes of the Bill of Rights. Where common law deviates from the objectives and purposes of the Bill of Rights, the courts have an obligation to remove the cause of such deviation.