## Facts

- In August 1995, Francois Coetzee attacked and injured Alix Jean Carmichele near Knysna.
- Coetzee was later convicted (arising from this attack) of attempted murder and housebreaking and sentenced to 12.5 years’ imprisonment.
- Before the attack on Carmichele, Coetzee had committed two prior sexual assaults and had violently assaulted another woman (“E”).
- In connection with those earlier matters, the investigating officer sent a note to the prosecutor indicating there was no reason to oppose bail, and the prosecutor did not place Coetzee’s prior convictions and history of violence before the bail court.
- Coetzee was granted bail. After his release, he again attempted to attack E and her friends.
- When Coetzee later appeared for a further bail hearing, police and prosecutors still did not inform the court about these further incidents.
- While Coetzee remained on bail, he attacked Carmichele.
- Carmichele sued the Minister of Safety and Security and the Minister of Justice and Constitutional Development in delict, alleging that police officials and prosecutors (acting under the ministers’ authority) negligently failed to take reasonable steps—such as opposing bail or placing material risk information before the court—to prevent foreseeable harm to members of the public, including her.
- The High Court separated merits from quantum and, at the close of Carmichele’s case, granted absolution from the instance, holding wrongfulness (a legal duty to act) had not been shown.
- The Supreme Court of Appeal dismissed her appeal, effectively confirming that no actionable legal duty was owed to her on the pleaded facts.
- Carmichele sought special leave to appeal to the Constitutional Court, which heard argument on leave and the constitutional issues tied to the delict claim.

## Issues

1. Whether the matter raised a constitutional issue within the Constitutional Court’s jurisdiction, including the obligation to develop the common law under section 39(2) of the Constitution.
2. Whether, in light of constitutional rights and values, the common-law approach to wrongfulness for omissions by police and prosecutors required development where officials failed to act against a known dangerous offender.
3. Whether the state, through police and prosecuting authorities, can owe a delictual legal duty to take reasonable steps to prevent a foreseeable attack by a known violent criminal, such that negligent failure may attract liability.

## Decision

- Special leave to appeal was granted, and the appeal succeeded.
- The Constitutional Court held the case raised constitutional issues because it concerned the content of state duties to protect rights and the court’s obligation to develop common-law delict consistently with the Bill of Rights.
- The Court held that, in principle, police and prosecuting authorities may owe a legal duty to protect individuals against a known dangerous criminal where harm is reasonably foreseeable, and negligent failure to take reasonable steps may found delict liability.
- The Court set aside the High Court’s order of absolution and the Supreme Court of Appeal’s order dismissing the appeal.
- The matter was remitted to the High Court for determination of liability on a properly developed common-law basis informed by constitutional rights and related obligations; the Constitutional Court did not finally determine liability on the existing record.

## Legal Principles

- Section 39(2) requires courts, when developing the common law, to give effect to the spirit, purport, and objects of the Bill of Rights; this applies to delict rules governing state omissions.
- Wrongfulness for an omission turns on whether the law should recognise a legal duty to act; that inquiry is shaped by constitutional rights and values rather than pre-constitutional policy alone.
- The rights to life, dignity, and freedom and security of the person support positive state duties of protection, including protection of women against gender-based violence by known violent offenders.
- Where police or prosecuting authorities know, or reasonably should know, of a real risk posed by a dangerous offender, reasonable steps may be required, including placing material information before a bail court and taking steps to oppose release where justified.
- Prosecutors may have a duty to ensure that information relevant to bail is put before the court, and negligent failure to do so can potentially ground delict liability.
- Absolution at the close of a plaintiff’s case is inappropriate where a constitutionally informed approach to wrongfulness and negligence could reasonably support liability on the evidence; lower courts must engage with the Bill of Rights when assessing such claims.

## Conclusion

The Constitutional Court held that constitutional rights and values must shape the common-law rules on delictual liability for omissions, and that the state (through police and prosecutors) can, in principle, owe and breach a legal duty to take reasonable steps to prevent foreseeable violent harm by a known dangerous offender; it therefore set aside the absolution and appellate dismissal and sent the matter back to the High Court to decide liability under a constitutionally developed delict framework.


Carmichele v. Minister of Safety and Security, 94 SALR 938 (CC 2001)