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The SCA dismissed the appeal with costs. Vivier JA delivered a unanimous judgment applying the common law test for wrongfulness of omissions in delictual…
Applied for the two-stage enquiry when a court is asked to develop the common law under section 39(2).
Applied for the principle that when applying section 39(2) of the Constitution, determination of community views in delict law (and by extension contract law)…
Applied for the principle that proportionality exercises must be carried out in accordance with the Bill of Rights and that courts must develop the common law…
Cited for the principle that this Court functions better when assisted by a well-reasoned judgment below.
Cited for the proposition that public policy is now deeply rooted in the Constitution and the values which underlie it.
Cited for the proposition that the common law must be developed within the matrix of the objective normative value system of the Constitution.
The Court cites this case for the principle that this Court is reluctant to entertain cases involving development of the common law as a court of first and…
Cited for the principle that the Constitution embodies an objective normative value system that guides the legislature, executive and judiciary.
The Court applies this case to warn that the major engine for law reform should be the Legislature and not the Judiciary, and that the Judiciary should confine…
Cited to show that development of the common law must occur in a way most appropriate within its own paradigm.
Cited for the principle that development of common law must occur in a way most appropriate within its own paradigm.
cites the test for granting absolution from the instance
The court applies the principle that a court may and must raise a constitutional or legal issue of its own accord where it appears on the papers in order to…
Cited for the proposition that this Court particularly values the views and experience of the Supreme Court of Appeal on matters of common law.
Cited for the proposition that in South Africa the highest test of public policy is the Constitution.
Cited for the principle that the proper construction to be placed on Acts must be determined in the light of the provisions of section 39(2) of the 1996…
Cited for the principle that it is not obligatory that all joint wrongdoers be sued in the same action.
Cited for the principle that the state's duty to protect rights includes the right of the public to have its safety and security protected.
Courts must develop common law in line with Constitution; duty arises in both civil and criminal law. Public policy informs wrongfulness element of delictual…
Cited for the principle that value judgments on legal duty must be exercised with reference to constitutional norms and values.
Applied for the requirements of a claim based on wrongful omissions of police officers, requiring legal duty, negligent breach, and causal connection between…
Cited for the principles guiding the development of common law, including that judges should be mindful that the major engine for law reform should be the…
Cited for the statement that Courts must remain vigilant and should not hesitate to ensure that the common law is developed to reflect the spirit, purport and…
Cited on the measure of public policy against constitutional values.
Cited on the obligation to develop the common law in accordance with the spirit, purport and objects of the Bill of Rights, and the state's duty to protect…
Cited in support of the application of a general criterion of reasonableness based on considerations of fairness, morality, policy and the court's perception…
Applied for the positive obligation on the state under section 7(2) to protect constitutional rights.
Distinguished as involving fundamental rights, unlike the present purely commercial dispute where no fundamental rights are implicated.
Cited for the principle that section 7(2) imposes a positive obligation on the state to provide appropriate protection through laws and structures.
Cited for the principle that courts cannot direct the State to locate a response in one piece of legislation rather than another.
Court applies principle that wrongfulness determination depends on reasonableness in accordance with constitutional norms.
Cited for the constitutional duty on police to prevent, combat and investigate crime and protect inhabitants.
Cited for the proposition that the Bill of Rights embodies a system of objective, normative values for legal purposes.
Applied for the principle that South Africa has a duty under international law to prohibit gender-based discrimination and take reasonable measures to prevent…
Carmichele is applied for the principle that the police have a duty to bring to the prosecutor's attention any factors known to them relevant to the…
Cited for the proposition that the Constitution embodies an objective, normative value system which, as a fundamental constitutional value, acts as a guiding…
Cited for the proposition that the Constitution embodies an objective, normative value system which acts as a guiding principle for all areas of law.
Cited for the proposition that the court's perception of legal convictions of the community as a test for wrongfulness may need reconsideration under the new…
Cited for the proposition that in motion proceedings a party must make its case in its papers.
Cited for the finding that the state bears the duty to prevent criminals in custody from committing acts of violence against members of the public, relying on…
Cited for the duty of the prosecutor to place before the court information relevant to the exercise of the court's discretion.
Cited for the proposition that prosecutors are required to act with objectivity and in the public interest.
Cited for the obligation on litigants to raise constitutional arguments at the earliest reasonable opportunity.
Cited for the court's obligation to develop common law in light of the Constitution.
Cited to illustrate that a declaration that common law or statutory provisions are inconsistent with the Constitution would clearly raise constitutional…
The court considered this case on the obligation to develop the common law where it deviates from the Bill of Rights, but found no such deviation existed in…
Court discussed the duty to develop common law when it deviates from the spirit, purport and objects of the Bill of Rights, and the importance of separation of…
Justice Minister's reliance on Carmichele to suggest that protection of the public requires deportation is rejected; the Court holds that Carmichele is not…
This case is cited for the principle that a failure to raise a legal point mero motu where necessary would infringe the principle of legality.
The Constitutional Court upheld the appeal, set aside the order of absolution from the instance, and referred the matter back to the trial court to proceed…
Cited for the importance of having a judgment of the Supreme Court of Appeal in matters concerning the development of the common law.
The Supreme Court of Appeal (Ponnan, Bosielo and Petse JJA) dismissed the appeal on 30 November 2012. The court held that the unlawfulness of detention did not…
Court applies the principle that police have a clear duty to bring to the attention of the prosecutor any factors relevant to the exercise by the magistrate of…
Applied to establish that the state has a duty to protect citizens from damaging acts by third parties under section 7(2) of the Constitution.
Cited in support of the requirement to develop the common law to promote the spirit, purport and objects of the Bill of Rights when the common law is deficient.
The court applied the test from Carmichelle for when absolution from the instance should be granted, namely whether a court applying its mind reasonably to the…
Court cites this case in the context of the constitutional duty of the SAPS to prevent, combat and investigate crime.
Cited for the mandatory constitutional canon of statutory interpretation under section 39(2) of the Constitution.
Cited for the principle that a party must make its case in its papers in motion proceedings.
The case is cited for the principle that this Court will be reluctant to entertain an appeal where a constitutional issue has not been properly raised earlier…