Alix Jean Carmichele v The Minister of Safety and Security and the Minister of Justice

On 6 August 1995, the appellant, a 28-year-old woman, was brutally assaulted with a pick handle and knife by Coetzee at a home in Noetzie, a secluded seaside village near Knysna. She sustained head injuries and a broken arm. Coetzee had a previous conviction for housebreaking and indecent assault (September 1994) and was facing a rape charge for an incident on 4 March 1995 involving Eurona Terblanche. Coetzee had been released on his own recognizance on multiple occasions: 6 March 1995, and again on 18 April 1995 after being sent to Valkenberg Hospital for psychiatric observation. Between his releases and the attack, Gösling (the homeowner) and the appellant made several requests to police and prosecutors to have Coetzee re-arrested and detained. A psychiatric report stated Coetzee had criminal capacity and was fit to stand trial but did not declare him dangerous to society. Neither the police nor prosecutors opposed his bail releases. Coetzee was later convicted of attempted rape (15 September 1995, 7 years imprisonment) and attempted murder for the attack on the appellant (13 December 1995, 10 years imprisonment).

• Whether the police and prosecutors owed the appellant a legal duty to act positively to prevent Coetzee from causing her harm
• Whether there was wrongful omission by the police in failing to provide full information to prosecutors and oppose bail
• Whether there was wrongful omission by prosecutors in failing to oppose Coetzee's release on 18 April 1995 and failing to secure his re-arrest following complaints
• Whether a special relationship existed between the prosecutors and the appellant sufficient to establish a legal duty
• Whether absolution from the instance was properly granted at the close of the appellant's case

The appeal was dismissed with costs, including the costs of two counsel. The order of absolution from the instance granted by the Court a quo (Chetty J) was upheld.

The binding principles established are: (1) A legal duty to prevent harm through positive action (omission cases) is determined by reasonableness, assessed with reference to all circumstances and the legal perceptions of the community as assessed by the court, involving policy decisions and value judgments. (2) For a legal duty to arise from an omission, there must be a special relationship between the person allegedly owing the duty and the claimant that distinguishes the claimant from other members of the general public who might be at risk. (3) The mere fact that a person belongs to a class of potential victims (e.g., women at risk from a rapist) is insufficient to establish the special relationship required for imposing a legal duty, regardless of the size of that class. (4) Complaints or requests made to prosecutors to re-arrest an accused are, by themselves, insufficient to establish the requisite special relationship. (5) At the close of a plaintiff's case, absolution from the instance is appropriate where there is insufficient evidence upon which the court could reasonably conclude that the legal duty contended for existed; the inference relied upon must be reasonable (not necessarily the only reasonable inference), and the test is what the trial court's own judgment is.

The Court made several non-binding observations: (1) The Court assumed in favour of the appellant that the State may be vicariously liable for an omission by a prosecutor in exercising a discretion, without definitively deciding this point. (2) The Court noted there is obviously no absolute duty resting on a prosecutor to oppose bail in all cases; prosecutors have a public duty to oppose bail in appropriate cases, but breach of this duty does not necessarily constitute a legally actionable omission at the instance of any individual member of the public. (3) The Court observed that during the period between the interim Constitution coming into force (27 April 1994) and the Criminal Procedure Second Amendment Act 75 of 1995 commencing (21 September 1995), awaiting-trial accused were released on bail or own recognizance far more readily than previously, with the State required to produce substantial grounds before an accused would be remanded in custody. (4) The Court questioned whether a later charge of trespass would have resulted in Coetzee's incarceration in any event. (5) The Court noted that the attack was clearly committed in furtherance of Coetzee's general criminal career on one of a number of the female general public who were at risk from his criminal conduct.

This case is significant in South African delictual law as it clarifies the test for establishing a legal duty in cases of omission, particularly concerning State liability for failures by police and prosecutors. It emphasizes that not all morally reprehensible omissions are legally actionable. The judgment is important for: (1) Confirming that the existence of a legal duty for omissions is determined by reasonableness, considering all circumstances, community legal perceptions, and policy considerations; (2) Establishing that there must be a special relationship between the defendant and plaintiff that distinguishes the plaintiff from the general public at risk before a legal duty arises; (3) Clarifying the limits of State vicarious liability for prosecutorial discretion in bail matters; (4) Interpreting the constitutional right to bail under the interim Constitution (section 25(2)(d)) and how it affected prosecutorial decision-making; (5) Demonstrating the application of the absolution from instance test. The case illustrates the tension between individual rights to protection and the accused's constitutional right to bail. Note: This SCA decision was later taken on appeal to the Constitutional Court, which overturned it in a landmark judgment (Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC)), holding that the common law of delict must be developed in accordance with constitutional values.