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1 The judgment of the SCA is
reported as Carmichele v Minister of Safety and Security and
Another 2001
(1) SA 489 (SCA).
2 2001 (1) SA 912 (CC); 2001
(1) BCLR 36 (CC) at paras 10-15. 3 Id at para 11.
4 Id at para 12.
5 Id at para 14. Section 39(
2) of the Constitution provides that:
"When interpreting
any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote
the spirit, purport and objects of the Bill of Rights."
The corresponding provision
of the Interim Constitution (IC) (Act 200 of 1993), section 35(
3), provided:
"In the
interpretation of any law and the application development of
the common law or customary law, a court, shall have due
regard to the spirit, purport and objects of this
Chapter."
6 Eurona Terblanche is
referred to by her first name to avoid confusion with her mother
to whom reference is made later in this judgment.
7 Act 51 of 1977.
8 Although the referral was
only in terms of section 77( 1) of the Criminal Procedure Act,
which relates to whether the accused is capable of understanding
the proceedings in question so as to make a proper
defence, it appears from the
record that Valkenberg treated the enquiry as also having been
made under section 78( 2), which relates to whether the accused
"is by reason of mental illness or mental defect not
criminally responsible for the offence charged."
9 Gordon Lloyd Page &
Associates v Rivera and Another 2001 (1) SA 88 (SCA) at 92E-93A.
10 1997 (3) SA 341 (A) at
344J-45B, per Mohamed CJ, and Van Heerden and Olivier JJA.
11 Cole v Government of the
Union of S. A. 1910 AD 263 at 272-73; Paddock Motors (Pty) Ltd v
Igesund 1976 (3) SA 16 (A) at 23B-24G.
12 See paras 41, 50 et seq
and 78 et seq.
13 Above n 5.
14 Section 7(2) of the IC
provided that:
"This Chapter shall
apply to all law in force . . . during the period of the
operation of this Constitution."
15 Since the Bill of Rights
applies to all law, and there is no material difference between
section 35(3) of the IC and section 39(2) of the Constitution, it
is unnecessary to consider in this case whether the principle of
non-retrospectivity applies. See Du Plessis and Others v De Klerk
and Another 1996 (3) SA 850 (CC); 1996 (5) BCLR 658 (CC) at paras
15-24.
16 Section 173 provides:
"The Constitutional
Court, Supreme Court of Appeal and High Courts have the
inherent power to protect and regulate their own process, and
to develop the common law, taking into account the interests
of justice."
17 As emerges from the
provisions of section 35(3) of the IC and section 39( 2) of the
Constitution, the development of the common law will not be
different whether we "have regard to" or
"promote" the "spirit, purport and objects"
of the respective Bills of Rights.
18 Du Plessis v De Klerk,
above n 15 at paras 65-66; Gardener v Whitaker 1996 (4) SA 337;
1996 (6) BCLR 775 (CC) at paras 16-18. 19 See Minister van
Polisie v Ewels 1975 (3) SA 590 (A) at 596G-97H. See also
Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824
(A) at 828H-29B; Marais v Richard En'n Ander 1981 (1) SA 1157 (A)
at 1166H-67A; Pakendorf En
Andere v De Flamingh 1982 (3) SA 146 (A) at 157E-58G; and Schultz
v Butt 1986 (3) SA 667 (A) at 681D-83I.
20 (1992) 8 CRR (2d) 173.
21 Above n 15 at para 61. 22
See S v Makwanyane and Another 1995 (3) SA 391 (CC); 1995 (6)
BCLR 665 (CC) at para 262 per Mahomed J. 23 Amod v Multilateral
Motor Vehicle Accidents Fund 1998 (4) SA 753 (CC); 1998 (10) BCLR
1207 (CC) at para 22. 24 Brink v Kitshoff NO 1996 (4) SA 197
(CC); 1996 (6) BCLR 752 (CC); S v Baloyi (Minister of Justice and
Another Intervening) 2000 (2) SA 425 (CC); 2000 (1) BCLR 86 (CC);
S v Chapman, above n 10.
25 Above n 5.
26 Above n 1 at para 7.
27 1995 (1) SA 303 (A) at
318E-H.
28 Section 9 of the IC;
Section 11of the Constitution.
29 Section 10 of the IC and
the Constitution.
30 Section 11 of the IC;
Section 12 of the Constitution.
31 489 US 189 (1988).
32 Id at 204.
33 29 EHHR 245 at 305, para
115.
34 In the case of Hill v
Chief Constable of West Yorkshire [1989] 1 AC 53 (HL) the House
of Lords found it necessary to protect the police from delictual
claims on the view that the interests of the community as a whole
are best served by a police force that is not diverted and
prejudiced by being diverted from its primary duties by the
exposure to such liability.
"The result would
be a significant diversion of police manpower and attention
from their most important function, that of the suppression
of crime."
Per Lord Keith of Kinkel at
63G. Similar considerations led the House of Lords to deny claims
against local authorities for negligence in respect of the
discharge of their functions concerning the welfare of children
in X and Others v Bedfordshire County Council [1995] 2 AC 633
(HL) per Staughton LJ at 674H-75G, and per Peter Gibson LJ at
681G-H. 35 [1999] 3 All ER 193.
36 Id at 199d-j.
37 Above n 33.
38 Id at 314, para 142.
39 Application no 29392/ 95,
10 May 2001, as yet unreported.
40 Above n 34.
41 Id at para 111.
42 Article 13 provides:
"Everyone whose
rights and freedoms as set forth in this Convention are
violated shall have an effective remedy before a national
authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
43 See, for example,
Transvaal Agricultural Union v Minister of Land Affairs and
Another 1997 (2) SA 621 (CC); 1996 (12) BCLR 1573 (CC) at para
18; S v Bequinot 1997 (2) SA 887 (CC); 1996 (12) BCLR 1588 (CC)
at para 15; Bruce and Another v Fleecytex Johannesburg CC and
Others 1998 (2) SA 1143 (CC); 1998 (4) BCLR 415 (CC) at para 8;
Christian Education South Africa v Minister of Education 1999 (2)
SA 83 (CC); 1998 (12) BCLR 1449 (CC) at paras 8 and 12; and
Dormehl v Minister of Justice and Others 2000 (2) SA 987 (CC);
2000 (5) BCLR 471 (CC) at para 5. 44 See, for example, Amod v
Multilateral Motor Vehicle Accidents Fund, above n 23 at para 33;
Member of the Executive Council for Development Planning and
Local Government, Gauteng v Democratic Party and Others 1998 (4)
SA 1157 (CC); 1998 (7) BCLR 855 (CC) at paras 31-32; and De
Freitas and Another v Society of Advocates of Natal (Natal Law
Society Intervening) 1998 (11) BCLR 1345 (CC) at paras 20-21.
45 Above n 43.
46 Id at para 15 citation
omitted.
47 Above n 43.
48 Id at para 8.
49 Above n 43.
50 Id at para 9.
51 Above n 44 at para 33. 52
Above n 44 at para 21.
53 BVerfGE 39, 1at 41 and Du
Plessis and Others v De Klerk and Another, above n 15 at para 94.
54 Compare also the remarks
of Mahomed AJ in S v Acheson 1991 (2) SA 805 (NmHC) at 813B.
55 Above para 36.
56 It is unnecessary for
purposes of this case to consider the position of the
magistrates' and other courts.
57 The way English law
approaches the development of the common law in this context is
illustrated by, for example, the decisions in Home Office v
Dorset Yacht Co. Ltd [1970] AC 1004 (HL); Hill v Chief Constable
of West Yorkshire above n 34; Barrett v Enfield London Borough
Council above n 35; and Lancashire County Council and another v A
(a child) [2000] AC 147 (HL). By contrast the development of the
private law in Germany in the present context is through the
indirect horizontal operation of the German Basic Law on private
legal relationships. This so-called "radiating effect"
of the Basic Law operates through the "general clauses"
of the German Civil Code, such as clauses which refer to
"good morals," "justified,"
"wrongful," "contra bonos mores," "good
faith" and so forth; and could even operate in respect of
private law rules which are unclear (see Du Plessis and Others v
De Klerk and Another, above n 15 at paras 39-40; 93-94; 103-05
and the authorities referred to therein). 58 Minister of Law and
Order v Kadir, above n 27 at 318E.
59 Id at 318F, quoting with
approval from Corbett "Aspects of the Role of Policy in the
Evolution of our Common Law" (1987) 104 SALJ 52 at 67. 60
Minister of Law and Order v Kadir, above n 27 at 318G. The
phrases quoted in the paragraph of text following this footnote
are all from the longer quotation cited at n 27 above.
61 In the passage quoted
therefrom in para 50 of this judgment.
62 See Bruce v Fleecytex,
above n 44 at para 8.
63 The provisions of the
Constitution are more explicit. Section 7( 2) provides that:
"The state must
respect, protect, promote and fulfil the rights in the Bill
of Rights."
Section 41(1)(b) further
provides that:
"All spheres of
government and all organs of state within each sphere must:
...(b) secure the well-being of the people of the
Republic;"
Chapter 11 makes provision
for Security Services. Section 198( a) provides that:
"... National
security must reflect the resolve of South Africans, as
individuals and as a nation, ..to be free from fear... "
And, section 205(3) reads as
follows:
"The objects of the
police service are to prevent, combat and investigate crime,
to maintain public order, to protect and secure the
inhabitants of the Republic and their property, and to uphold
and enforce the law."
64 Act 7 of 1958 which was
replaced by the South African Police Service Act 68 of 1995 which
commenced on 15 October 1995.
65 The Centre for Applied
Legal Studies (CALS), an organisation based at the University of
the Witwatersrand, which conducts research and engages in
advocacy, litigation and training for the promotion and
protection of human rights in South Africa. CALS has a Gender
Research Project which focuses specifically on questions of
women's human rights and sex and gender equality, with particular
reference to the promotion of equality for disadvantaged groups
of women.66 Above n 10 at 345C-D. 67 The Convention on the
Elimination of All Forms of Discrimination Against Women,
commonly known by its acronym CEDAW, was adopted in General
Assembly Resolution 34/ 180 on 18 December 1979. See articles 1,
2, 3, 6, 11,12 and 16. The Convention was signed by South Africa
on 29 January 1993 and ratified on 15 December 1995. The United
Nations Committee on the Elimination of Discrimination Against
Women, which was established under the Convention, recommended in
1992 that:
" . . .States may
also be responsible for private acts if they fail to act with
due diligence to prevent violations of rights or to
investigate and punish acts of violence, and for providing
compensation."
See General Recommendation
19, U. N. GAOR, Committee on the Elimination of Discrimination
Against Women, 11th sess. (1992). See generally a helpful article
by Helene Combrinck, "Positive State Duties to Protect Women
from Violence: Recent South African Developments" (1998) 20
Human Rights Quarterly 666-690. And see S v Baloyi, above n 24 at
para 13. 68 Above n 7. 69 Above n 1 at paras 14-15. 70 Whether,
as the Criminal Procedure Act then read, it was open to the
magistrate in the circumstances of the present case to review or
reconsider the release of Coetzee, is a matter on which we do not
express an opinion. 71 Under the Constitution section 179 deals
more explicitly with the "prosecuting authority." It is
provided, inter alia, in section 179(4) that national legislation
must ensure that the prosecuting authority exercises its
functions without fear, favour or prejudice. The national
legislation is to be found in the National Prosecuting Authority
Act 32 of 1998. Section 32(1) of the Act reads as follows:
"(a) A member of
the prosecuting authority shall serve impartially and
exercise, carry out or perform his or her powers, duties and
functions in good faith and without fear, favour or prejudice
and subject only to the Constitution and the law.
(b) Subject to the
Constitution and this Act, no organ of state and no member or
employee of an organ of state nor any other person shall
improperly interfere with, hinder or obstruct the prosecuting
authority or any member thereof in the exercise, carrying out
or performance of its, his or her powers, duties and
functions."
72 See R v Riekert 1954 (4)
SA 254 (SWA) at 261D-E; S v Jija and Others 1991 (2) SA 52 (E) at
67J-68A, and S v Van Huyssteen [2000] 3 All SA 439 (C) at para
11. Australia: Lawless v R (1979) 26 ALR 161 at 176-77;
R v Hall (1979) 28 ALR 107
at 112. Canada: Boucher v The Queen, (1954) 110 CCC 263 at 270;
Bain v The Queen (1992) 87 DLR (4 th ) 449 at 463-65. England: R
v Brown [1997] 3 All ER 769 (HL) at 778. India: S. B.
Shahane v State of
Maharashtra AIR 1995 SC 1628 at 1629-31. United States: Imbler v
Pachtman, District Attorney 424 US 409, 423 (1976).
73 S v Dlamini; S v Dladla
and Others; S v Joubert; S v Schietekat 1999 (4) SA 623 (CC);
1999 (7) BCLR 771 (CC) at paras 41-43; Ellish en Andere v
Prokureur-Generaal, Witwatersrandse Plaaslike Afdeling 1994 (4)
SA 835 (W) at 849E-F.
74 Adopted by the 8th United
Nations Congress on the Prevention of Crime and the Treatment of
Offenders held in Havana, Cuba from 17 August -7 September 1990.
These guidelines have been incorporated by
reference in our law by
section 22(4)(f) of the National Prosecuting Authority Act 32 of
1998, which requires the National Director to bring them to the
attention of Directors and prosecutors and promote their respect
for and compliance with those principles.
75 See Du Toit et al
Commentary on the Criminal Procedure Act (Juta, Cape Town 1987,
revision service update 24, 2000) at 9-7; and Ellish en Andere v
Prokureur-Generaal, Witwatersrandse Plaaslike Afdeling, above n
73 at 846H-J.
76 Above para 26.
77 Mazibuko v Santam
Insurance Co Ld and Another 1982 (3) SA 125 (A) at 134E-35A;
Putter v Provincial Insurance Co Ltd. and Another 1963 (4) SA 771
(W) at 772F-G; Ardecor (Pty) Ltd v Quality Caterers (Pty) Ltd and
Others 1978 (3) SA 1073 (N) at 1076G-77C.
78 Ardecor, id at 1077C-F.
Compare Young v Rank and Others [1950] 2 KB 510 at 511-13.
79 Above n 27.
80 Id at 318G-J.
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