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[61] Section 215 of the IC provides that:
"The powers and
functions of the Service shall be -
(a) the prevention of
crime; (b) the investigation of any offence or alleged
offence;
(c) the maintenance of
law and order; and
(d) the preservation of
the internal security of the Republic." [63]
The detailed duties of the
South African Police Service at the time relevant to this matter
were to be found in the Police Act. [64] Section 5 read as
follows:
"The functions of the
South African Police shall be, inter alia?
(a) the preservation of
the internal security of the Republic;
(b) the maintenance of
law and order;
(c) the investigation of
any offence or alleged offence; and (d) the prevention of
crime."
[62] Thus one finds positive
obligations on members of the police force both in the IC and the
Police Act. In addressing these obligations in relation to
dignity and the freedom and security of the person, few things
can be more important to women than freedom from the threat of
sexual violence. As it was put by counsel on behalf of the amicus
curiae: [65]
"Sexual violence
and the threat of sexual violence goes to the core of women's
subordination in society. It is the single greatest threat to
the self-determination of South African women."
She referred in that context
to the following statement by the SCA in the Chapman case: [66]
"The courts are
under a duty to send a clear message to the accused, to other
potential rapists and to the community. We are determined to
protect the equality, dignity and freedom of all women, and
we shall show no mercy to those who seek to invade those
rights."
South Africa also has a duty
under international law to prohibit all gender-based
discrimination that has the effect or purpose of impairing the
enjoyment by women of fundamental rights and freedoms and to take
reasonable and appropriate measures to prevent the violation of
those rights. [67] The police is one of the primary agencies of
the state responsible for the protection of the public in general
and women and children in particular against the invasion of
their fundamental rights by perpetrators of violent crime.
[63] In the present case the
complaint against Klein (the investigating officer in Eurona's
case) is not that he was guilty of a mere omission. Coetzee was
in custody and Klein had a clear duty to bring to the attention
of the prosecutor any factors known to him relevant to the
exercise by the magistrate of his discretion to admit Coetzee to
bail. He made a positive recommendation that Coetzee should be
released on warning in the clear knowledge that the prosecutor
would act on such recommendation.
[64] When Klein informed the
prosecutor that Coetzee should be released on warning he had
interviewed both Eurona and Coetzee. He was aware of the
allegation (exaggerated as it may have been) that Coetzee had a
previous conviction for rape. On the day after the attack on
Eurona, Klein took a statement from Coetzee. It is not clear from
the record of the proceedings in the High Court what information
was given to him by Coetzee. It was submitted on behalf of the
applicant that there was a probability that Coetzee would have
given Klein the information he later gave to Louw. For the
purpose of an application for absolution from the instance we
consider that a reasonable court might be prepared to make that
assumption in favour of the applicant.
[65] There appears to be no
question that at all times after the attack on Eurona, Coetzee
admitted that he was the perpetrator of a violent sexual attack
on her. That, too, was a relevant consideration. Coetzee already
had a suspended sentence hanging over him for a sexual assault.
In the circumstances, and in the light of his admission, less
weight than is normally given would have been attached to the
presumption of innocence and to the right to freedom and security
of the person in determining where the interests of justice lay
as far as bail was concerned.
[66] Klein was aware that if
released Coetzee would return to his mother's home in the
secluded setting of Noetzie. If there was a risk of a repeat
attack on a woman, those living in the vicinity of the Coetzee
home would be most vulnerable if Coetzee was released. According
to Gosling and the applicant they certainly perceived themselves
to be in such a position. It was also known to Klein that the
previous attacks by Coetzee had been committed against women who
knew him. The issue here is whether, given these facts and the
constitutional protection to which the applicant was entitled,
Klein's advice to the prosecutor that Coetzee be released on his
own recognisances was unlawful.
[67] The SCA did not
consider the conduct of Klein on 5 March 1995 and dealt with the
case on the basis only of the failure by the prosecutor to oppose
bail on 18 April 1995 after Coetzee's return from Valkenberg. But
once Coetzee was released on warning in March, the pattern was
set. When he returned from Valkenberg that release order was
likely to remain in place unless there were grounds on which he
could be denied bail at that stage.
[68] When Coetzee was
returned in custody from Valkenberg and appeared before the
magistrate on 18 April 1995, Louw (the senior prosecutor) was
aware of the material facts relating to Coetzee's history of
criminal conduct. She had indeed noted them at the time of the
referral of Coetzee to Valkenberg. Those facts disclosed that
Coetzee had on two occasions perpetrated crimes of a sexual
nature on women who were known to him. The second one was
accompanied by brutal violence. Furthermore, Coetzee acknowledged
that he had great difficulty in controlling his sexual impulses.
This is borne out by the fact that his victims were known to him
and his apprehension was inevitable. Louw was also aware that
there were very few women living in the seclusion of Noetzie and
that they were concerned for their safety and had strong feelings
that Coetzee should not have been allowed back into their
community.
[69] With his consent,
Coetzee was committed to Valkenberg on 15 March 1995 and for that
purpose was taken into custody. A committal order was made under
the provisions of section 77 of the Criminal Procedure Act. [68]
It was necessary, therefore, at the end of the period of
observation at Valkenberg, for Coetzee again to appear in the
magistrate's court. Olivier, the prosecutor on that occasion,
apparently did not apply for him to be kept in custody and he was
again released on his own recognisance.
[70] The SCA dealt with the
matter on the basis that the magistrate had the power to withdraw
the earlier order releasing Coetzee on his own recognisance and
reconsider the question of bail. Vivier JA said the following:
"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 rearrest following the
complaints on 20 June 1995 and 2 August 1995.
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." [69]
[71] This conclusion that
the magistrate could at that hearing have withdrawn the previous
order releasing Coetzee on warning was not challenged in this
Court and for the purposes of this judgment we consider it
prudent to deal with the matter on the basis that the SCA did.
[70]
Posted on 2002-08-02
remarks:3 |
