Nandi Jacobs v The Minister of Justice and Correctional Services

On 1 April 2012, Ms Jacobs was attacked by Ivan Botha who attempted to assault, rape and rob her. Botha was a convicted criminal with a history of rape and indecent assault offences. He had been convicted in 2003 on two counts of indecent assault and rape and sentenced to 15 years' imprisonment. He was placed on parole on 1 November 2010 by the Parole Board following a decision made on 24 November 2009. During the period 24 February 2011 to 28 August 2011, Botha violated his parole conditions on five occasions but received only verbal warnings (four times) and parole supervision (once). The attack on Ms Jacobs occurred while Botha was on parole. Botha was subsequently prosecuted and convicted of robbery and conspiracy and enticement to commit a sexual offence. Ms Jacobs sued the Minister for R2,040,000 for pain and suffering, alleging that the Minister breached his duty to protect her by releasing Botha on parole and failing to re-incarcerate him after parole violations.

• Whether absolution from the instance was correctly granted by the high court
• Whether the test for absolution from the instance was correctly applied - could a court applying its mind reasonably to the evidence find for the plaintiff
• Whether a breach of statutory duty by the Parole Board gives rise to a delictual claim for damages
• Whether the Parole Board failed lawfully to exercise its powers under the Correctional Services Act 111 of 1998
• Whether the Parole Board acted wrongfully and negligently in releasing Botha on parole given his criminal history
• Whether the supervision authorities acted wrongfully in failing to recommend re-incarceration after parole violations
• Whether causation was established between the Parole Board's decision and the attack on the plaintiff

The appeal was upheld with costs. The high court's order granting absolution from the instance was set aside and replaced with an order dismissing the application for absolution from the instance with costs. The matter will return to the high court for the defendant to present its case.

Where a plaintiff has led evidence that, if accepted, could permit a court reasonably applying its mind to find in the plaintiff's favor, absolution from the instance must be refused. In the context of a claim against the Minister for a Parole Board's decision to release a prisoner who subsequently commits a violent crime, documentary evidence showing that: (1) the prisoner was a repeat sexual offender; (2) the Parole Board released him without obtaining a recommended psychologist's report; (3) the Board relied on superficial assessments; and (4) subsequent parole violations by a "high risk" parolee were met only with warnings rather than re-incarceration, constitutes sufficient evidence that could support a finding of wrongfulness and negligence. Where substantial and complex issues of law arise concerning whether a cause of action exists, absolution from the instance should be refused to allow these issues to be properly determined after all evidence has been heard.

The court noted but expressly declined to decide several important legal questions: (1) Whether a breach of statutory duty by the Parole Board under the Correctional Services Act 111 of 1998 gives rise to a delictual claim for damages. (2) How the reasoning in Carmichelle v Minister of Safety and Security (recognizing delictual liability for failure to protect) is to be reconciled with the precautionary approach in Steenkamp NO v Provincial Tender Board (limiting claims based on breach of statutory duty). (3) Whether the Correctional Services Act expressly confers or excludes a claim for damages for breach of statutory duty, and if silent, whether common law founds such a cause of action. (4) The role of policy considerations in determining whether delictual liability should attach to parole decisions. The court observed these issues would have been better addressed by way of exception at the outset, and that deciding them prematurely could prejudice the defendant's opportunity to lead evidence on matters of public policy. The court also noted the "very essence of parole decisions concerns calculated risks" and that Parliament constituted the Parole Board to make such difficult decisions, but cautioned that if the Board exercises powers without due regard to risks, its conduct may be judged wrongful and negligent (assuming a cause of action exists).

This case is significant in South African law for several reasons: (1) It clarifies the proper application of the test for absolution from the instance, reaffirming that the court must consider whether it "could or might" (not "should or ought to") find for the plaintiff on the evidence. (2) It recognizes that where substantial issues of law arise, the interests of justice favor refusing absolution to allow full ventilation of the issues after all evidence is heard. (3) It addresses the potential liability of the Minister for decisions of the Parole Board, touching on the intersection of constitutional rights (protection from violence, particularly for women), statutory duties under correctional services legislation, and common law delict. (4) It signals that parole decisions involving repeat sexual offenders may require heightened scrutiny and proper risk assessment, including psychological evaluations. (5) It leaves open important questions about when breach of statutory duty gives rise to delictual claims, requiring reconciliation of Carmichelle (recognizing delictual claims for failure to protect) with Steenkamp NO (limiting claims for breach of statutory duty).