Alix Jean Carmichele v The Minister of Safety and Security and The Minister of Justice and Constitutional Development

Carmichele was attacked and seriously injured by a man who had previously been arrested for attempted rape but was released on bail. The police and prosecutor failed to oppose bail despite knowledge of the man's dangerousness. Carmichele sued the state for damages, arguing that the police and prosecutor's failures were wrongful and caused her harm.

• State liability
• Wrongfulness
• Legal duty
• Constitutional values
• Gender-based violence

The matter was sent back to the High Court for a full trial on the merits. The Constitutional Court's judgment fundamentally changed how wrongfulness is determined in post-constitutional South Africa.

When determining wrongfulness in delict, courts must apply constitutional values, particularly the rights to dignity, equality, and freedom and security of the person. The state has a positive constitutional duty to protect citizens from violence, especially women from gender-based violence. In determining whether the state's omission was wrongful, courts must consider whether imposing liability would promote constitutional values and whether it would be reasonable to impose a legal duty in the circumstances.

The Court made several important observations: (1) Litigants have an obligation to raise constitutional arguments at the earliest reasonable opportunity to ensure jurisprudence develops reliably and harmoniously; (2) While the major engine for law reform should be the legislature, not the judiciary, courts must remain vigilant under the Constitution and should not hesitate to develop common law to reflect the Bill of Rights - the duty is "different in degree" from that in other constitutional systems because South Africa's Constitution brought into operation "in one fell swoop, a completely new and different set of legal norms"; (3) Sexual violence and the threat thereof "goes to the core of women's subordination in society" and is "the single greatest threat to the self-determination of South African women"; (4) South Africa has obligations under international law (particularly CEDAW) to prohibit gender-based discrimination and take reasonable measures to prevent violations of women's rights; (5) Courts should be mindful when imposing liability on prosecutors not to use hindsight unfairly or create a chilling effect that might prejudice the liberty of accused persons - prosecutors work under significant pressure and there are too many awaiting-trial prisoners; (6) The proportionality exercise required in delictual wrongfulness, combined with requirements of foreseeability and proximity, sufficiently addresses concerns about "chilling effects" on public officials without requiring immunity; (7) The U.S. distinction between "action" and "inaction" under the 14th Amendment due process clause (as in DeShaney v Winnebago County) is inconsistent with South African constitutional values, which point in the opposite direction; (8) The approach of English courts granting broad immunity to public authorities (as in Hill v Chief Constable) is inconsistent with South Africa's Constitution, though more recent developments in English law (Barrett v Enfield) and European Court of Human Rights jurisprudence (Osman v UK; Z v UK) move toward rejecting such immunities; (9) The Court did not definitively resolve whether the magistrate's evidence about what he would have done regarding bail was admissible, noting this involves complex issues about whether objective or subjective tests apply to causation.

This is one of the most important cases on the intersection of delict and constitutional law. It established that constitutional values must inform all aspects of private law, including the wrongfulness inquiry in delict. The case recognized the state's positive duty to protect citizens from harm and is foundational to claims against the state for failing to prevent crime.