THE DUTY TO DEVELOPE THE COMMON LAW- A VISIONARY JUDGMENT IN DEVELOPMENT AND INTERPRETATION: Carmichele v Minister of Safety and Security

I know this is a throw back to many. The Carmichele judgment was the focus of lectures in various legal modules, from delict, to jurisprudence, criminal law, this judgment was in every lecture hall. And if i had paid better attention in school, i can bet you that it was also taught in Communication Management. It and S v Makwanyane where the two that rang in lecture halls and required citation in answers to exams question. Basically, if there was a south african legal judgment greatest hit, Carmichele & Minister of Safety and Security makes it on that list. The court took a position and that position essentially became law- and i paraphrase " We the court have a duty to align the common law with the spirit, purport and object of the bill of right". "Interpretation of the law must take cognisance at all times with promoting the constitutional values of human dignity, freedom and equality". Every judgment where you read those words, its hard not to think about the Carmichele judgement and thats why we are taking a trip back to the future and reminding ourselves of the impact we can have in utlising the law to its fullest potential. Now, have we seen a drastic decrease in crime because law enforcement are accountable to their negligent ommission? No, crime is going even more stupid now. But i dont want to downplay the impact the law has in creating social norms that aim to better the societies we live. Corruption is the problem as we see now with the commission and the netflix specials that are coming out of there. Without proper institutions to enforce the law, judgments like the Carmichele judgment will be appreciated as it should.

In this digital page, we are going back in time and exploring the written judgment of Carmichele v Minister of Safety and Security. We will look at the facts, Issues for determination, Applicable legal rules, Courts Application of those rules, the Influence of the judgment on future case and the impact of the courts order in our lived realities.

The judgment of the Constitutional Court in Carmichele v Minister of Safety and Security established critical principles regarding the interpretation and development of the common law of delict under South Africa's constitutional order, particularly concerning the state's liability for negligent omissions related to public duties and the protection of fundamental rights.

1. Facts

The litigation arose from a violent assault committed by Francois Coetzee (Coetzee) on the applicant, Alix Jean Carmichele, on the morning of 6 August 1995,. The key events leading to the attack involved Coetzee's criminal history and the failure of state officials to take preventive action. Coetzee had a record of sexual misconduct and was previously convicted of housebreaking and indecent assault, resulting in a conditionally suspended prison sentence.

In March 1995, Coetzee committed a subsequent attack against a person identified as "E". E's mother reported the attack to the police, noting that Coetzee allegedly claimed he had a prior rape conviction. Despite the investigating officer, Detective Sergeant Klein, being aware of the allegations and Coetzee's prior conviction, he recommended that Coetzee be released on warning, stating there was no reason to deny bail. The prosecutor, Mr. G Olivier, proceeded to release Coetzee unconditionally on his own recognisance without presenting the magistrate with the information regarding Coetzee’s criminal history.

A friend of the applicant, Julie Gosling, was alarmed by Coetzee’s continued presence in the secluded village of Noetzie and feared he would re-offend,. Gosling conveyed her concerns and knowledge of Coetzee’s previous conviction to both Captain Oliver (police) and the senior prosecutor, Ms. Dian Louw, seeking his detention pending trial,. Louw advised Gosling that the authorities were "tied" unless Coetzee committed another offence. After Coetzee returned from a mental observation period, prosecutor Olivier again did not seek his custody, and Coetzee was warned to appear on a later date,. The applicant later observed Coetzee suspiciously approaching Gosling's home, which was reported again to Louw, who reiterated her powerlessness,,. Coetzee subsequently broke into Gosling's home and violently attacked the applicant,.

The applicant instituted proceedings for damages against the Ministers for Safety and Security and Justice and Constitutional Development, arguing that police and public prosecutors negligently failed to comply with a legal duty owed to her to prevent Coetzee from causing her harm,.

2. Issues

The central legal issue before the High Court and the Supreme Court of Appeal (SCA) was the existence of a legal duty (wrongfulness) owed by the police and prosecutors to the applicant to protect her from Coetzee, a crucial element in establishing the state's delictual liability.

The primary constitutional issues before the Constitutional Court (CC) were:

1. Constitutional Jurisdiction and Development of Common Law: Whether the lower courts erred by failing to heed the mandatory obligation under Section 39(2) of the Constitution to develop the common law of delict to promote the spirit, purport, and objects of the Bill of Rights, specifically regarding the determination of wrongfulness in cases of omissions by state organs,,,.

2. State's Positive Duties and Legal Duty to Act: Whether the state organs (police and prosecutors) owed a positive legal duty to the applicant to protect her based on the constitutional entrenchment of rights to life, dignity, and security of the person (Sections 10, 11, and 12).

   
   

3. Applicable Legal Rules and Principles

The case involved the interplay between the common law of delict and the South African Constitution:

A. Delictual Liability and Wrongfulness (Omissions): To succeed in her claim, the applicant needed to establish, inter alia, that the officials owed a legal duty to protect her. The traditional pre-constitutional test for wrongfulness involved a policy decision and value judgment concerning whether the omission was legally actionable, derived from considering the "legal perceptions of the community" and weighing the interests of the parties against the conflicting interests of the community,,.

B. Constitutional Supremacy and Development of Common Law: The Constitution is the supreme law and binds the executive, legislature, and judiciary,,. Section 39(2) imposes a critical obligation on all courts, tribunals, and forums to "promote the spirit, purport and objects of the Bill of Rights" when interpreting legislation and developing common law or customary law,. This requires courts to develop common law if it deviates from the foundational constitutional values of human dignity, equality, and freedom,,.

C. State's Positive Duties: The Bill of Rights enshrines the rights to life (Section 11), human dignity (Section 10), and freedom and security of the person (Section 12). The Constitution places a positive obligation on the state (Section 7) and its organs to "respect, protect, promote and fulfil" these rights,. This positive obligation may, in certain circumstances, translate into a legal duty for the state organs to take preventive operational measures to protect individuals whose lives are at risk from criminal acts,.

D. Rejection of Public Immunity: The CC explicitly addressed arguments relating to "public interest immunity" (as seen in some English case law), ruling that a public interest immunity excusing state organs from delictual liability "would be inconsistent with our Constitution and its values". Liability must be determined by law and its application, subject to the common law principles of foreseeability and proximity limiting liability, along with a necessary proportionality exercise.

4. Court's Application of Legal Rules

The CC noted that the High Court and SCA had failed in their constitutional duty under Section 39(2) by assuming the application of the static, pre-constitutional test for wrongfulness instead of applying the necessary two-stage inquiry for developing the common law,,.

The CC applied the constitutional framework to the facts and evaluated the conduct of the state organs:

• Positive Duty and Wrongfulness: The police have a positive obligation to prevent, combat, and investigate crime,. This mandate takes on a special significance in protecting vulnerable groups, such as women, against sexual violence, which constitutes a severe threat to their dignity and self-determination,.

• Conduct of Police (Klein): The investigating officer, Klein, did more than merely omit to act; he made a positive recommendation for Coetzee's release on bail, fully aware of the serious sexual attack allegation and Coetzee's previous suspended sentence for indecent assault,,. The CC suggested that a court might deem Klein's advice unlawful given Coetzee’s pattern of offending and the specific risk he posed to the secluded community where the applicant lived.

• Conduct of Prosecutors (Louw and Olivier): Prosecutors owe a duty to act impartially in the public interest and must place all relevant information before the presiding judicial officer concerning bail, particularly when public safety is a concern,,. Louw was fully aware of Coetzee's repeated sexual misconduct and the specific fears of the community,. The CC reasoned that a prosecutor’s negligent failure to bring reliable, adverse information to the court regarding an accused's potential for violence could result in liability for damages if that negligence led to harm,.

• Causation Threshold: Regarding the third element of delict, causation, the CC found that the evidence suggested that if the relevant information about Coetzee’s history and psychological profile had been placed before the magistrate, bail might have been refused,. This satisfied the threshold necessary to deny absolution from the instance and require the state to put forward its defence.

  
  

5. Judgment and Reasoning

The Constitutional Court granted special leave to appeal and upheld the appeal, setting aside the orders of absolution granted by the High Court and the SCA. The order substituted the High Court’s judgment with a dismissal of the application for absolution from the instance, and referred the matter back to the High Court for the trial to continue,.

The rationale for this decision was twofold:

1. Sufficient Merit and Procedural Posture: The CC was satisfied that the applicant’s case had "sufficient merit" and raised complex factual and legal issues regarding the development of the common law. Granting absolution would terminate the litigation on potentially hypothetical facts developed only for the preliminary hearing.

2. Judicial Hierarchy and Development of Law (Section 39(2) mandate): The CC declined to decide definitively whether and how the common law should be developed, as this involved choosing among competing policy decisions and normative approaches, a task for which the CC lacked the benefit of a fully considered judgment from the SCA or High Court. By remitting the case, the CC ensured that the lower courts (the High Court and the SCA, both having expertise in the common law) would fulfil their constitutional mandate under Section 39(2) to engage in the necessary development of the common law in light of constitutional values, ensuring proper interaction in developing jurisprudence.

   
   

6. Influence on Future Cases

The Carmichele judgment holds profound influence on future cases, particularly in South Africa's public law and delict jurisprudence.

• Constitutional Development Imperative: The most enduring impact is the confirmation that Section 39(2) imposes a mandatory and active duty on all courts to ensure the common law aligns with the fundamental values and rights enshrined in the Bill of Rights,. This effectively constitutionalized the evolution of common law, ensuring that future interpretation and development must always promote human dignity, equality, and freedom.

• State Accountability for Omissions: The ruling fundamentally shifted the landscape of state liability for omissions. It unequivocally rejected the doctrine of blanket public interest immunity (often invoked to protect police or prosecutors). Instead, it established that the wrongfulness inquiry must incorporate the state’s positive constitutional duties (Section 7) to protect citizens, forcing courts to analyze omissions by state actors through a constitutional lens,.

• Impact on Lived Realities (Protection of Vulnerable Groups): By highlighting the need to protect women from violent crime, the judgment provided a powerful legal tool for vulnerable individuals seeking redress when state organs fail to act diligently to safeguard their fundamental rights,. The focus on the police's and prosecutor's roles in the bail process means that state agents can be held accountable, not only for positive wrongful acts but also for negligent failures to properly exercise their public functions where foreseeability and proximity of harm are established, thereby enhancing the accountability and responsiveness of public administration,,.

• Procedural Justice in Developing Law: The decision affirmed the principle that constitutional issues involving the development of the common law should generally first be addressed by the High Court and the SCA, allowing the CC to perform its role as the final arbiter of constitutional matters with the benefit of extensive legal reasoning from specialized lower courts,. This institutionalizes a cautious yet mandatory approach to judicial law reform.

DISCLAIMER: THIS DOES NOT CONSTITUTE LEGAL ADVISE NOR ACT AS LEGAL AUTHORITY FOR THE SUBJECT DISCUSSED. THIS IS BASED ON AN IDEA, A CURIOSITY AND DOOM SCROLLING ON SAFLII. CONSULT YOUR ATTORNEY, PREFERABLY LOCAL ATTORNEY AND TAKE IT FROM THERE