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The Carmichele Case: How South Africa’s Constitution Turned State Omissions into a Duty to Protect

Introduction

Few cases in South African legal history illustrate the transformative power of the Constitution as clearly as Carmichele v Minister of Safety and Security (2001). What began as a brutal assault in a quiet coastal village evolved into a landmark judgment by the Constitutional Court, reshaping the law of delict, State liability, and the responsibilities of prosecutors and police. The case marked a turning point in recognising the State’s constitutional duty to protect individuals, particularly women, from gender-based violence (Currie & De Waal, 2022).


The Facts of the Case

In August 1995, Ms. Alix Jean Carmichele was attacked by Coetzee, a known violent offender. What made the attack particularly shocking was that Coetzee had been released on his own recognizance despite having a prior conviction for indecent assault, pending charges of rape, and repeated warnings from both police officers and community members that he posed a danger.


Carmichele decided to sue the Minister of Safety and Security and the Minister of Justice, arguing that prosecutors and police officers had a duty to prevent Coetzee’s release or at least to secure his re-arrest. The Supreme Court of Appeal dismissed her claim on the basis that no special duty had been owed to her. However, the Constitutional Court overturned this decision, grounding State liability in the constitutional obligation to protect rights (Carmichele v Minister of Safety and Security, 2001).


The Constitutional Court’s Intervention

When the Constitutional Court delivered judgment in 2001, it made clear that the State, under both the Interim Constitution of 1993 and the 1996 Constitution, bears a positive duty to protect fundamental rights such as life, dignity, equality, and freedom from violence (Louw, 2010). The Court emphasised that the common law of delict could not remain insulated from constitutional principles and must be developed in accordance with them.


This intervention marked a turning point in South African jurisprudence. By holding that police and prosecutors may be held delictually liable for negligent omissions, the Court placed the protection of individuals at the centre of constitutional obligations. Perhaps most importantly, the Court recognised that gender-based violence was not merely a social issue but a constitutional matter directly tied to the protection of fundamental rights (Bonthuys, 2002).


Impact on South African Law

The Carmichele case fundamentally reshaped the law of delict by expanding the scope of State liability. Shortly after, the principle was reinforced in Minister of Safety and Security v Van Duivenboden (2002), where the Supreme Court of Appeal ruled that while private citizens may be free to remain passive, the State cannot adopt such a stance because it is constitutionally obliged to act positively to protect rights (Neethling & Potgieter, 2020).


The recognition of State duties was deepened in Van Eeden v Minister of Safety and Security (2003). There, the Supreme Court of Appeal held that the State has a general duty to protect women against violent crime. Unlike earlier jurisprudence that required proof of a “special relationship” between the victim and the State, the Court confirmed that the duty arises directly from the Constitution itself, particularly from the rights to dignity, equality, and freedom from violence (Van Eeden v Minister of Safety and Security, 2003).


Beyond individual cases, Carmichele triggered a broader shift in how constitutional rights inform common law. Courts consistently reaffirmed that wrongfulness in delict must be interpreted through constitutional values, shaping not only negligence cases involving police and prosecutors but also claims of wrongful arrest and detention (Currie & De Waal, 2022).


The case also had a lasting impact on how gender-based violence is understood in South African law. By explicitly recognising such violence as a constitutional issue, the Court created a foundation for later statutory reforms, including the strengthening of bail provisions, the Sexual Offences Act, and the Domestic Violence Act (Bonthuys, 2002).


Finally, Carmichele was significant for judicial accountability. The Constitutional Court made it clear that judges cannot remain passive in the face of injustice; instead, they have a duty to develop the common law in step with constitutional principles. This judgment became a symbol of judicial transformation, ensuring that courts actively advance constitutional values when interpreting the law.


Conclusion

The Carmichele case marked a decisive shift in South African law by embedding constitutional duties into delictual liability. Together with Van Duivenboden (2002) and Van Eeden (2003), it created a trilogy of cases confirming that the State bears a proactive obligation to protect citizens, particularly women, from violence.


Where the Supreme Court of Appeal once saw no duty, the Constitutional Court insisted that failure to act in the face of known dangers could not be excused as a mere omission. Instead, it represented a breach of the State’s constitutional responsibilities. Today, Carmichele remains a cornerstone of South African constitutional jurisprudence, guiding the ongoing struggle to ensure justice, dignity, and safety for all.


References


This article is authored by Megan Lombaard, Law Student from South Africa and Trainee of Lets Learn Law Legal Research Training Programme. The views and opinions expressed in this piece are solely those of the author.


 
 
 

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