Minister of Safety and Security and Another v Carmichele

Ms Carmichele was viciously attacked by Coetzee on 6 August 1995 at a home in Noetzie. Five months earlier, Coetzee had been released on his own recognizances after being charged with raping Ms Eurana Terblanche. The police (Klein and Captain Hugo) and prosecutor (Ms Louw) had recommended his release without opposing it, despite the docket containing evidence of attempted murder and rape, including Coetzee throttling the complainant until she lost consciousness, his warning statement admitting he may have raped her, and information about a possible previous rape conviction. The Magistrate, not apprised of these facts, accepted the recommendation and released Coetzee. During the attack on Carmichele, Coetzee struck her with a pick handle, broke her arm, and stabbed her in the chest. He was later convicted of attempting to murder her and housebreaking and theft. Carmichele sued the Ministers of Safety and Security and Justice for damages, arguing the police and prosecutor were negligent in failing to oppose bail and that they owed her a legal duty of care.

• Whether the State owed a legal duty to the plaintiff to protect her from harm caused by Coetzee
• Whether the police officers and prosecutor acted negligently in failing to oppose Coetzee's release on bail
• Whether there was a causal connection between the negligent breach of duty and the damages suffered by the plaintiff
• Whether wrongfulness should be assessed in light of constitutional values under section 39(2) of the Constitution
• Whether the test for causation in cases involving judicial discretion should be objective or subjective
• Whether legal causation was established (remoteness of damages)

The appeal was dismissed with costs, including costs consequent on the employment of two counsel. The State was held liable for damages to Ms Carmichele (quantum having been stood over for later adjudication in the trial court).

The binding legal principles established are: (1) The State is liable for omissions by police and prosecutors where they fail in their duty to oppose bail or place relevant facts before the court, resulting in the release of a dangerous accused who then causes harm. (2) A public law duty owed by police and prosecutors can translate into a private law duty of care in delict, particularly where the plaintiff has no other effective remedy and the constitutional norm of accountability demands it. (3) Police officers and prosecutors cannot blindly rely on recommendations without proper basis when the materials before them contradict such recommendations - they must make independent assessments in serious cases. (4) For causation in cases involving intervening judicial discretion, the inquiry is what the particular judicial officer would probably have done, but courts may presume that judicial officers act reasonably and apply the test of what a reasonable judicial officer would have done on the probabilities. (5) The test for wrongfulness in delict must be informed by constitutional values, particularly the State's duty under the Bill of Rights to protect fundamental rights including life, dignity, and freedom and security of the person. (6) Foreseeability of harm, while not determinative of wrongfulness alone, is an important factor, and where a plaintiff is part of a readily foreseeable class of potential victims (rather than just a member of the general public), this reinforces the existence of a legal duty.

The Court made several notable non-binding observations: (1) While the Constitution emphasizes the special duty of the State to protect women against violent crime and sexual abuse, State liability should not necessarily be determined by or dependent on the sex of the victim or the nature/motive of the assault. (2) Proximity and special relationship, while not self-standing requirements for wrongfulness in South African law (unlike English law), are relevant connecting factors that make it more likely that a duty exists. (3) The English law tort of misfeasance by a public officer (requiring dolus directus or eventualis) provides a useful comparison for understanding when public officials may be liable. (4) There may be particular aspects of police activity where the public interest is best served by denying an action for negligence, but this was not such a case. (5) The Court noted the uncertainty in bail law in the immediate post-constitutional era (1995) when judicial officers in lower courts were uncertain about the effect of the new rights culture on the criminal justice system. (6) The Court expressed some reservation about calling judicial officers to testify on hypothetical questions of how they would have decided cases, noting such evidence would generally be inadmissible opinion or unhelpfully speculative.

This case is a landmark decision in South African delictual liability law, particularly regarding State liability for omissions. It applied and developed the Constitutional Court's earlier Carmichele judgment, establishing that: (1) The constitutional norm of accountability requires the State to be held liable for failures to perform constitutional duties unless there are compelling policy reasons otherwise. (2) The State owes a duty to protect individuals, particularly women and children, from violent crime, and this duty extends to police and prosecutors in bail proceedings. (3) Wrongfulness in delict must be assessed through the prism of constitutional values under section 39(2) of the Constitution. (4) Proximity between plaintiff and defendant, while not an independent requirement for wrongfulness in South African law, reinforces claims where the plaintiff is part of a foreseeable class of victims. (5) The case clarified the test for causation in cases involving intervening judicial discretion, holding that courts should determine what a reasonable judicial officer would probably have done, with a factual presumption that judicial officers act reasonably. The judgment significantly expanded State liability for omissions in the criminal justice system, emphasizing accountability and the protection of fundamental rights.