Carmichele v Minister of Safety and Security

The Constitutional Court held that the common law of delict must be developed in light of the Constitution's spirit, purport and objects to give effect to fundamental rights. The state has a constitutional duty to protect the right to bodily integrity, and the police may be held liable where they fail to take reasonable steps to prevent foreseeable harm to individuals.

The applicant was brutally attacked and injured by a man who had previously been arrested for attempted rape but was released due to police and prosecutorial failures to oppose bail or warn potential victims. She sued the Ministers of Safety and Security and Justice for damages, alleging negligent failure to prevent the attack.

Whether the common law of delict should be developed to impose liability on the state for failure to protect individuals from foreseeable criminal harm in light of constitutional rights.

The court held that the common law of delict must be developed to align with constitutional values, particularly the right to freedom and security of the person. The police owe a legal duty to take reasonable steps to prevent harm where there is a foreseeable risk to an individual, and failure to do so may attract delictual liability.

Courts are constitutionally mandated to develop the common law incrementally to promote the spirit, purport and objects of the Bill of Rights, including by recognizing state liability in delict for failure to protect fundamental rights such as bodily integrity.

The Court emphasized that all law, including common law, must be interpreted and developed consistently with the Constitution. Given the constitutional right to freedom and security of the person, the police have a duty to act reasonably to protect individuals from foreseeable harm. The traditional reluctance to impose liability on the police for omissions must yield to constitutional imperatives requiring protection of fundamental rights.

The Court noted that development of the common law must occur incrementally and with proper regard to the facts of each case, and that not every police omission will attract liability—only where there is a sufficiently close relationship and foreseeable risk.

Carmichele is a foundational case demonstrating how the Constitution transforms private law in South Africa. It is essential for understanding the horizontal application of the Bill of Rights, the duty to develop common law, and state liability in delict for failure to protect constitutional rights.

Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) [2001] ZACC 22