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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO: 310/98
In the matter between
:
ALIX JEAN
CARMICHELE Appellant
and
THE MINISTER OF SAFETY AND
SECURITY First Respondent
THE MINISTER OF JUSTICE Second
Respondent
___________________________________________________________________________
Before: Van Heerden ACJ et Vivier,
Howie, Schutz, Zulman JJA
Heard: 22 September 2000
Delivered: 2 October 2000
Delictual action for damages
___________________________________________________________________________
J U D G M E N T
___________________________________________________________________________
VIVIER JA
VIVIER JA:
[1] During the morning of
6 August 1995 the appellant, a 28 year old woman, was brutally assaulted with a
pick handle and knife by one
Coetzee at the home of Ms Julie Gösling at
Noetzie, a small secluded seaside village near Knysna. The appellant sustained
head
injuries and a broken arm in the attack.
[2] Coetzee was a
convicted criminal, having been found guilty on 6 September 1994 in the Regional
Court at Knysna on charges of house-breaking
and indecent assault for which he
had been sentenced to a fine and suspended periods of imprisonment. These
charges had arisen from
an incident during the night of 3 January 1994 at the
home of Ms Beverley Claassen in Hornlee, Knysna. At the time of the attack
on
the appellant Coetzee was, in addition, facing a charge of having raped a young
woman, Eurona Terblanche, at the Hornlee sports
grounds on 4 March 1995.
Coetzee had first appeared on this charge in the Knysna Magistrate's Court on 6
March 1995 when he had
been released on his own recognizance. On 15 March 1995
he had been taken into custody and sent to Valkenberg Hospital for observation.
On 18 April 1995, upon his return from Valkenberg Hospital, he had appeared in
the Knysna Magistrate's Court when he had again been
released on his own
recognizance pending a decision by the Attorney-General on whether the case
should be tried in the High Court
or the Regional Court.
[3] On the
Terblanche charge Coetzee was eventually convicted of attempted rape on 15
September 1995 and was sentenced to 7 years' imprisonment.
For the attack on
the appellant he was convicted of attempted murder on 13 December 1995 and
sentenced to 10 years' imprisonment.
[4] Following the attack on her
by Coetzee the appellant brought a delictual action for damages against the two
respondents in the Cape
Provincial Division in consequence of the injuries she
had sustained at the hands of Coetzee. The appellant's case, as pleaded,
was
that the members of the South African Police as well as the public prosecutors
at Knysna owed her a legal duty to act in order
to prevent Coetzee causing her
harm and that they had negligently failed to comply with such duty. It was
common cause that the
police and prosecutors at all relevant times acted in the
course and scope of their employment as servants of the respective
respondents.
[5] The trial came before Chetty J who was asked to
decide only the issue of liability and to permit the question of the
quantum of damages to stand over. At the conclusion of the appellant's
case the learned Judge held that there was no evidence upon which
a court,
applying its mind reasonably to such evidence, could find for the plaintiff that
the said duty had existed and that the
police and public prosecutors at Knysna
had acted wrongfully. He accordingly granted an order of absolution from the
instance with
costs. With the leave of the Court a quo the appellant
appeals to this Court. In the circumstances we are not concerned with the
question whether negligence was proved or
the further question whether any
possible negligence could ever have been causally related to the appellant's
loss.
[6] The legal duty contended for was one owed to the appellant
to act positively in order to ensure that Coetzee was remanded in custody
pending his trial on the rape charge and to ensure that he was re-arrested when
complaints about his behaviour were made to the police
and prosecuting
authorities on 20 June 1995 and 2 August 1995. The duty to secure his re-arrest
was limited to the prosecutors.
[7] The appropriate test for
determining the wrongfulness of omissions in delictual actions for damages in
our law has been settled in
a number of decisions of this Court such as
Minister van Polisie v Ewels 1975(3) SA 590 (A) at 597 A-C; Minister
of Law and Order v Kadir 1995(1) SA 303 (A) at 317 C-318 I; Knop v
Johannesburg City Council 1995(2) SA 1 (A) at 27 G-I and Government of
the Republic of South Africa v Basdeo and Another 1996(1) 355 (A) at 367
E-H. The existence of the legal duty to avoid or prevent loss is a conclusion
of law depending upon a consideration
of all the circumstances of each
particular case and on the interplay of many factors which have to be
considered. The issue, in
essence, is one of reasonableness, determined with
reference to the legal perceptions of the community as assessed by the
Court.
In Minister of Law and Order v Kadir, supra, Hefer JA,
stated the nature of the enquiry thus at 318 E-H:
"As the judgments in the cases referred to earlier demonstrate, conclusions
as to the existence of a legal duty in cases for which
there is no precedent
entail policy decisions and value judgments which 'shape and, at times,
refashion the common law [and] must
reflect the wishes, often unspoken, and the
perceptions, often dimly discerned, of the people' (per M M Corbett in a lecture
reported
sub nom 'Aspects of the Role of Policy in the Evolution of the
Common Law' in (1987) SALJ 52 at 67). What is in effect required is that,
not
merely the interests of the parties inter se, but also the conflicting
interests of the community, be carefully weighed and that a balance be struck in
accordance with what the
court conceives to be society's notions of what justice
demands."
Hefer JA also stressed the difference between morally
reprehensible and legally actionable omissions and warned that a legal duty is
not determined
by the mere recognition of social attitudes and public and legal
policy (at 320 A-B). The question must always be whether the defendant
ought
reasonably and practically to have prevented harm to the plaintiff: in other
words, is it reasonable to expect of the defendant
to have taken positive
measures to prevent the harm (Prof J C van der Walt in Lawsa, First
Reissue, Vol 8, Part 1 para 56).
[8] With this approach in mind I turn
to deal more fully with the facts of the present case.
When Coetzee first
appeared in the Magistrate's Court on 6 March 1995 in connection with the
alleged rape of Eurona Terblanche, the
investigating officer, Sergeant Kleyn,
recommended that he be released on his own recognizance. A note in the file to
the effect
that Coetzee had a previous conviction for rape arising from the
events at Claassen's house (this was incorrect as his previous conviction
was
for indecent assault) was not brought to the attention of the magistrate, Mr K J
Von Bratt, who ordered that Coetzee be released
on his own recognizance. Von
Bratt's evidence was to the effect that in the period between the coming into
force of the Constitution
of the Republic of South Africa Act 200 of 1993 ("the
interim Constitution") on 27 April 1994 and the commencement of the Criminal
Procedure Second Amendment Act 75 of 1995 on 21 September 1995 (which
extensively revised the bail provisions of the Criminal Procedure
Act 51 of
1977), awaiting trial accused were allowed out on bail or own recognizance far
more readily than was previously the case.
He said that at the relevant time
the State had to produce substantial grounds before an awaiting trial accused
would be remanded
in custody. At the relevant time sec 25(2)(d) of the interim
Constitution provided that every person arrested for the alleged commission
of
an offence had, in addition to rights as a detained person, the right to be
released with or without bail, unless the interests
of justice required
otherwise. Sec 35(1)(f) of the present Constitution of the Republic of
South Africa Act 108 of 1996 provides
that everyone who is arrested for
allegedly committing an offence has the right to be released from detention if
the interests of
justice permit, subject to reasonable conditions. Von Bratt
was not prepared to say that, if properly informed, he would have remanded
Coetzee in custody.
[9] After his release from custody on 6 March 1995
Coetzee returned to Noetzie, where he had been living with his mother, Ms Annie
Coetzee,
since the end of 1994. Annie Coetzee was employed by Gösling in
her business at Knysna and also did domestic work for her in
her house at
Noetzie where Gösling lived permanently. Gösling had arranged with
the owner of one of the few other houses
at Noetzie that Annie Coetzee could
occupy the house and look after it.
[10] A few days after Coetzee's
release from custody Eurona Terblanche's mother approached Gösling and told
her about the attack
on her daughter and about Coetzee's previous conviction for
indecent assault. As a result Gösling spoke to Captain Lawrence
Oliver of
the Knysna police and asked him to see to it that Coetzee was kept in custody
pending his trial. Captain Oliver told Gösling
to discuss the matter with
the senior public prosecutrix, Dian Louw, which she did. Gösling testified
that she told Louw that
Coetzee would hurt her or one of her friends as she
feared that he would repeat his previous crime. Louw told her that there was
nothing she could do until he committed another offence.
[11] On 13
March 1995 Coetzee attempted to commit suicide. Annie Coetzee's evidence was
that Coetzee had sexually abused girls in the
family from an early age and that
she wanted him to be sent to an institution for treatment as she was afraid that
he would commit
another sexual offence. With the assistance of a family member,
Sergeant Grootboom of the Knysna Police, she took Coetzee to see
Louw the day
after the attempted suicide. The latter's notes of what Coetzee told her were
produced at the trial and include the
following:
"Vlgs besk. kom probleem aan sedert hy 10 jaar oud is. Neigings bv. kry ereksies en om 'n vrou te sien of foto's.
My niggie gemolesteer in die aand as sy slaap haar bevoel
ma het my uitgevind.
Dr. toe geneem
Dr my gewaarsku 13/14 jaar.
Masturbeer baie
onsedelike aanrandings - by 'n huis ingegaan en die meisie onsedelik aangerand - bevoel + panty afgetrek.
Van 1½ jaar opgeskort 1994
Verkragting.
......
Sien meisies moet my keer hardloop huis toe masturbeer."
In view of what
Coetzee told Louw he was rearrested, brought before court on 15 March 1995 and
was referred to Valkenberg Hospital
for observation. The referral documents
prepared by Louw included her abovementioned notes as well as details of the
sexual attack
on Eurona Terblanche. Copies of the referral documents were sent
to the Attorney-General.
[12] On 18 April 1995, upon his return from
Valkenberg Hospital, Coetzee again appeared in the Knysna Magistrate's Court,
this time before
Mr L Goosen. The prosecutor handed in a report by Dr A Jedaar,
a specialist psychiatrist at Valkenberg Hospital, to the effect that
Coetzee had
criminal capacity at the time of the attack on Eurona Terblanche and that he was
fit to stand trial. The magistrate
accepted the findings in the report.
Coetzee was thereupon charged with rape and pleaded not guilty. The case was
postponed to
2 May 1995 awaiting the Attorney-General's decision as to whether
Coetzee should be tried in the High Court. Coetzee was once again
released on
his own recognizance. His release was not opposed by the prosecutor who again
did not inform the magistrate of the previous
conviction. Goosen did not
testify and there is no evidence to suggest that had he been fully informed he
would have ordered that
Coetzee be detained in custody pending his trial.
Nothing appears from the record about the proceedings on 2 May 1995 when Coetzee
was again released on his own recognizance. The Attorney-General decided that
Coetzee should be tried before a Regional Court and,
again, did not suggest his
detention awaiting trial.
[13] The evidence for the appellant was that
in the period between 18 April 1995 and the attack on the appellant on 6 August
1995 Gösling,
the appellant and Annie Coetzee on various occasions all
requested the police and/or Louw to have Coetzee re-arrested and to ensure
that
he was detained in custody pending his trial. Gösling testified that one
morning towards the end of June 1995 while she
was at work she received a
telephone call from the appellant who had stayed overnight at her home in
Noetzie. The appellant informed
her that she had seen Coetzee prowling around
the house apparently trying to get in through the window of Gösling's
bedroom.
Gösling testified that she went into the Knysna charge office and
spoke to Captain Oliver who said that the police could do
nothing unless Coetzee
committed a crime. He again told her to speak to Louw, who told her the same.
Neither the appellant nor
Gösling laid any charge against Coetzee resulting
from this incident. In fact, according to Gösling, she never told the
police or the prosecutor that Coetzee had trespassed. This was probably because
she was aware of the fact that he was doing chores
for his mother at
Gösling's home at Noetzie and was therefore allowed on to the property. It
is clear from her evidence that
her main reason for talking to the police and
Louw was that Coetzee had been released in the first place. On 2 August 1995,
i.e.
only four days before the attack, Gösling again raised her fear of
Coetzee with Louw who repeated that there was nothing she
could
do.
[14] In view of the fact that Coetzee was taken into custody after
his first release on 6 March 1995 and that he was then again released
on 18
April 1995 the court proceedings on 6 March 1995 are irrelevant and need not be
considered. The essential enquiry is, first,
whether the alleged legal duty was
owed by the police and prosecutors with regard to Coetzee's release on 18 April
1995 and, secondly,
whether the prosecutors owed the appellant a legal duty to
secure his re-arrest following the complaints on 20 June 1995 and 2 August
1995.
[15] With regard to Coetzee's release on 18 April 1995 it was
obviously the magistrate's decision whether to release him or not, so that
the
legal duty contended for must be confined to a duty, on the part of the police,
to provide the prosecutor with full information
and a duty, on the part of the
prosecutor, to oppose bail and to give the court full information relevant to
Coetzee being remanded
in custody or released.
[16] On 18 April 1995
the prosecutor was in possession of all the information relevant to Coetzee's
detention or release. This consisted
of Coetzee's one previous conviction for
housebreaking and indecent assault (which appeared from the referral documents),
the nature
of the crime he was then charged with, the referral documents and Dr
Jedaan's psychiatric report. There was accordingly nothing
further required of
the police and consequently no legal duty was owed by them relative to Coetzee's
release on 18 April 1995. I
have pointed out already that it was not alleged
that the police owed any legal duty relative to Coetzee's possible re-arrest
thereafter.
[17] That leaves the question whether the prosecutors at
Knysna owed a legal duty to the appellant to oppose Coetzee's release on 18
April
1995 and to secure his re-arrest. I shall assume in favour of the
appellant that the State may be vicariously liable for an omission
by a
prosecutor in exercising a discretion.
There is obviously no absolute duty
resting on a prosecutor to oppose bail in all cases. The prosecutor has a
public duty to oppose
bail in appropriate cases but a breach of this duty does
not necessarily constitute a legally actionable omission at the instance
of any
individual member of the public. Whether a legal duty is owed in that situation
to any individual member of the public depends
on what is reasonable, having
regard to all the facts and circumstances of the particular case and the
interplay of the factors mentioned
by the authorities to which I have referred.
It also depends on whether the claimant stands in a special relationship to the
defendant
such as distinguishes the claimant from any other member of the
public.
[18] In the present case the facts are that Coetzee was facing
a charge of having raped and seriously injured a young woman. He had only
one
previous conviction for indecent assault (not involving physical harm) for which
he had been given a suspended sentence. He
had been sent for observation and
the psychiatric report did not declare him to be any danger to society and made
no recommendation
that Coetzee be kept in custody, despite Louw's notes in the
referral documents, which reflected the seriousness of the rape and
Coetzee's
sexual deviation. Copies of the referral documents had been sent to the
Attorney-General, who had not seen fit to instruct
the prosecutor to oppose
bail. At the time a recently issued circular from the Attorney-General
instructed prosecutors in his area
to assume for the time being that awaiting
trial accused had the right to be released and that if the state wished to
oppose such
release it bore the onus of proving that it would be contrary
to the interests of justice. Consequently the attitude of the magistrates was
to grant bail
despite the seriousness of the offence and despite the conflicting
interests of the community that women should be protected from
sexual
assault.
[19] In all these circumstances, and particularly the
psychiatric report, it cannot be said, in my view, that it was unreasonable for
the prosecutor not to have opposed the release of Coetzee on his own
recognizance. For this reason the prosecutor did not owe the
appellant a legal
duty either to oppose bail or to ensure his subsequent re-arrest. It is,
moreover, highly questionable whether
a later charge of trespass would have
resulted in Coetzee's incarceration in any event.
[20] There is
another reason why the circumstances of the present case are not capable of
establishing the legal duty contended for.
This is that there was no special
relationship shown to exist between the prosecutors at Knysna and the appellant.
That there must
be some relationship between the person who owes the legal duty
and the person to whom the duty is owed, the breach of which would
expose the
latter to a particular risk of harm in consequence of an omission, which risk is
different in its incidence from the general
risk of harm to all members of the
public, is well-established in English law and is also in accordance with our
law. See Hill v Chief Constable of West Yorkshire [1988] 2 ALL ER 238
(HL); Alexandrou v Oxford [1993] 4 ALL ER 328 (CA); Osman and Another
v Ferguson and Another [1993] 4 ALL ER 344 (CA); Kent v Griffiths and
Others [2000] 2 WLR 1158 (CA) LAWSA, first reissue, Vol 8, para
56.
[21] Counsel for the appellant did not challenge the requirement
of a special relationship. Indeed, he submitted that a special relationship
existed in view of the fact that the appellant was attacked at Noetzie where,
because of its isolation, women were at greater risk.
If women at Noetzie were
more at risk than, say women in Knysna or elsewhere, this by itself is not
sufficient to establish the
special relationship required for imposing a legal
duty. Coetzee was released on 18 April 1995 and the attack took place some
three
and a half months later on 6 August 1995, after he had been at large in
the neighbourhood for most of that time and there was only
the prowling incident
to speak of. The assault was clearly committed in the further pursuance of
Coetzee's general criminal career
on one of a number of the female general
public who were at risk from his criminal conduct. As was pointed out by Lord
Keith in
the Hill case (at 243 d-e), where the class of potential victims
of a particular criminal is a large one the precise size of it cannot in
principle affect the issue. All householders are potential victims of a
habitual burglar and all females those of a habitual rapist.
In the absence of
evidence that the appellant was at any special distinctive risk the fact that
the attack occurred at a secluded
village where she was a visitor is
insufficient to establish the special relationship contended for. The mere fact
that complaints
and requests for Coetzee's re-arrest were made to the
prosecutors is also insufficient to establish a special relationship (cf
Alexandrou v Oxford, supra, at 338 g-j).
[22] Counsel for the
appellant finally submitted that the Court a quo erred in granting
absolution from the instance at the close of the appellant's case. As was
emphasised by Harms JA in the as yet unreported judgment of this Court in
Gordon Lloyd Page and Associates v Francesco Rivera and Tiber Projects (Pty)
Ltd (case no 384/98 in which judgment was delivered on 31 August 2000), the
inference relied upon by the plaintiff at the close of his
or her case must be a
reasonable one, not the only reasonable one, and the test for absolution at that
stage is not what another
reasonable person or court might think but what the
trial court's own judgment is (at 2-4 of the judgment).
In my view there was
in the present case insufficient evidence upon which the Court a quo could
reasonably conclude that the duty
contended for existed. The Court a quo
accordingly correctly granted absolution from the instance.
The appeal is
dismissed with costs, including the costs of two counsel.
W. VIVIER JA
Van Heerden ACJ)
Howie JA)
Schutz JA)
Zulman JA) CONCUR
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