Nandi Jacobs v The Minister of Justice and Correctional Services

The appellant, Ms Nandi Jacobs, was attacked and an attempt was made to assault, rape and rob her on 1 April 2012 by Ivan Botha, a convicted criminal with prior convictions for rape and indecent assault. Botha had been released on parole on 1 November 2010 by a Parole Board decision taken in November 2009. During his parole, Botha violated parole conditions on several occasions but was sanctioned only with verbal warnings and supervision, not re-incarceration. Ms Jacobs sued the Minister of Justice and Correctional Services for delictual damages, alleging that the Parole Board negligently and wrongfully released Botha on parole and failed to revoke his parole despite breaches, thereby breaching statutory and constitutional duties to protect the public, particularly women, from violent crime. After Ms Jacobs closed her case, the High Court granted absolution from the instance. Ms Jacobs appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The order of the High Court granting absolution from the instance was set aside and replaced with an order dismissing the application for absolution from the instance with costs.

The case is significant for clarifying the approach to absolution from the instance in matters involving complex constitutional and delictual questions, particularly concerning state liability for parole decisions. It affirms that courts should be slow to grant absolution where substantial legal and policy issues arise and where documentary evidence may support findings of negligence. The judgment also contributes to the developing jurisprudence on the potential delictual liability of the state for failures in parole decision-making and supervision.