Andre Gregory Mohamed, a known dangerous criminal and serial rapist escaped from police cells where he was being held for identification. He escaped through an unlocked security gate. Mohamed was facing 22 charges, including rape and indecent assault. Within six days of his escape, he resumed sexual attacks on young women. Appellant was the third victim of such attacks. Appellant filed an action against the state, arguing that the South African Police Service owed her a legal duty to take reasonable steps to prevent Mohamed from escaping and causing her harm, and that they negligently failed to comply with that duty.
The Court determined whether the police owe a positive duty of care to a victim of sexual violence.
The Court based its decision on the ruling in Carmichele v. Ministry of Safety and Security, a case that required the courts to develop common law consistently with the objects and spirit of the Bill of Rights. The Court noted that freedom from violence is recognized as fundamental to the equal enjoyment of human rights and fundamental freedoms, and that the state is required to protect individuals, both by refraining from such violence itself and by taking active steps to prevent violations of human rights. The Court held that this obligation places a positive duty on the state to protect everyone from violent crime. Moreover, the state is obliged under international law to protect women against violent crime and against the gender discrimination inherent in violence against women. The police service is one of the primary agencies of the state that is responsible for the discharge of its constitutional duty to protect the public in general and women against the violation of their fundamental rights by perpetrators of violent crime. The Court rejected the notion that a special relationship between a plaintiff and defendant is an absolute prerequisite for imposing a legal duty, because to hold otherwise would mean “that the common law does not adequately reflect the spirit, purport and objects of the Bill of Rights.” Accordingly, the Court held that the police owed a duty of care to Plaintiff, and they thus acted negligently and must be held liable for damages suffered by Appellant.
The Court held that the South African Police Service owe a legal duty to act positively to prevent the escape of an offender held in police custody. Negligence on behalf of the police will result in liability for damages suffered by individuals at the hands of the escaped offender.