Carmichele v Minister of Safety: How the Constitution Changed Wrongfulness

Citation: Carmichele v Minister of Safety 2001 (4) SA 938 (CC)

Why This Case Is Landmark

Carmichele constitutionalized the law of delict. It held that constitutional values must inform the boni mores test for wrongfulness.

The Facts

• Carmichele attacked by man previously arrested for attempted rape
• Police/prosecutor failed to oppose bail despite knowing he was dangerous
• She sued the state for failing to protect her

The Ratio

When determining wrongfulness, courts must apply constitutional values (dignity, equality, freedom, security). The state has a positive duty to protect citizens from violence, especially women from gender-based violence.

Impact on Boni Mores

Old approach: Would society's legal convictions condemn this conduct?

New approach: Do constitutional values require imposing liability? Would it promote rights like dignity, equality, security?

Exam Application

For wrongfulness after Carmichele:

Step 1: State Van Breda test (boni mores)

Step 2: "Carmichele requires constitutional values to inform this test."

Step 3: Identify relevant constitutional rights (Section 9 equality, Section 10 dignity, Section 12 security)

Step 4: Would imposing liability promote these values?

Related

• Van Breda v Jacobs — Original boni mores test
• K v Minister of Safety (2005) — State's duty to protect from crime
• Rail Commuters Action Group v Transnet (2005) — Omissions liability

Tags: #delict #wrongfulness #constitutionalvalues #stateliability #carmichele