SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this

document in compliance with the law and SAFLII Policy

Reportable
Case No 533/02

In the matter between:

THE MINISTER OF SAFETY AND SECURITY First Appellant

THE MINISTER OF JUSTICE Second Appellant

and

ALIX JEAN CARMICHELE Respondent

Coram: HARMS, STREICHER, FARLAM, NAVSA AND LEWIS JJA

Heard: 3 NOVEMBER 2003
Delivered: 14 NOVEMBER 2003
Subject: Delict – liability of State for negligence of police and
prosecutors for a failure to oppose bail – accused thereafter
attempted to murder plaintiff

JUDGMENT

HARMS JA/
HARMS JA:

[1] This appeal concerns the delictual liability of the State for damages

suffered by the respondent, Ms Carmichele, as a result of a vicious assault

 2

perpetrated on her by one Coetzee. It is not the case that the State is

vicariously liable for what Coetzee did but it is sought to be held liable for

damages where the damage was inflicted by a party unrelated to the State.1

[2] Five months before the assault on the plaintiff Coetzee was released

on his own recognisances pending his trial on a charge of rape of Ms E.T.,2 a

seventeen-year old schoolgirl. The police and the prosecutor had

recommended to the court that he could be released with a warning to appear

at a later date and the Magistrate, who was not apprised of any further facts,

accepted the recommendation and ordered his release accordingly.3 Since

the decision to release Coetzee was that of the Magistrate, the plaintiff’s

allegations for the basis of her claim are – broadly stated – that the police

officers concerned and the prosecutor should have realised that Coetzee was

a danger to society; they were in duty bound to oppose Coetzee’s application

for release pending his trial; in this regard they owed, amongst others, Ms

Carmichele (to whom I shall refer as ‘the plaintiff’) a legal duty; they were

negligent in not having opposed his release; had they done so, he would not

have been released by the court; had he been kept in detention he would not

have assaulted the plaintiff.

[3] The case has followed a circuitous route. The assault on the plaintiff

1
Cf K v The Secretary of State for the Home Department 2002 EWCA Civ 775 para 17.
2
The identity of the respective persons involved has been disclosed in previous law reports and it would
serve no purpose at this stage by not referring to them by name.
3
If an accused is in custody in respect of any offence a court may in lieu of bail release the accused from
custody and warn him to appear before a specified court at a specified time on a specified date in
 3

occurred already on 6 August 1995 and the case against the appellants came

to trial during September 1997 before Chetty J, sitting in the Cape Provincial

Division. At the conclusion of the plaintiff’s case he granted absolution from

the instance, finding that the plaintiff had failed to make out a prima facie

case of wrongfulness, which is the primary element for delictual liability. An

appeal to this Court was dismissed on the same ground on 2 October 2000.

That judgment will be referred to as ‘Carmichele (SCA)’.4 However, the

plaintiff had a measure of success when a further appeal to the

Constitutional Court was upheld, the order of absolution from the instance

aside and the matter referred back to the trial court to proceed with the trial.

The judgment of the Constitutional Court will be referred to as ‘Carmichele

(CC)’.5 During March 2002, the trial recommenced and at its conclusion

Chetty J found in favour of the plaintiff, holding the appellants, the

Ministers of Safety and Security and of Justice (in fact of Justice and

Constitutional Development) liable; quantum stood over for later

adjudication. His judgment,6 delivered on 14 May 2002, will be referred to

connection with such offence: s 72(1) of the Criminal Procedure Act 51 of 1977.
4
Carmichele v Minister of Safety and Security and another [2000] 4 All SA 537 (A); 2001 (1) SA 489
(SCA).

5
Carmichele v Minister of Safety and Security and Another 2001 (10) BCLR 995 (CC); 2001 (4) SA 938
(CC).

6
Carmichele v Minister of Safety and Security and Another 2002 (10) BCLR 1100 (C); 2003 (2) SA 656
(C).
 4

as ‘Carmichele (CPD)’ and it is the judgment presently on appeal.7 Most of

the facts relevant to the appeal have been stated in one or more of these

judgments and since they are not really in contention, I intend to make

copious use of those expositions. In Carmichele (CC) there is a chronology

of events; however for purposes of this judgment I shall not make use of a

chronology since it may be misleading: the elements of delictual liability

cannot be assessed on an ex post facto basis. Only the facts known or

available at any given time are relevant.

The attack on the plaintiff

[4] The detail of the attack at this stage of the case is relevant only in so

far as it establishes the motive for and nature of the attack. Why that is of

moment will become apparent at a later stage of the judgment. The attack

took place at the home of Ms Julie Gösling at Noetzie, a secluded seaside

hamlet some 12 kilometres from Knysna. On Sunday 6 August 1995 the

plaintiff went to Gösling’s home where they had arranged to meet. Gösling

had not yet arrived. The plaintiff went into the house and was confronted by

Coetzee who apparently had broken in. When she saw him he immediately

attacked her with a pick handle. His blows were directed at her head and

face. When she lifted her arm to protect herself, one of the blows struck and

broke her arm. He threatened her and dragged her around the house. He

7
Chetty J refused leave to appeal but it was subsequently granted by this Court.
 5

repeatedly ordered her to turn around. She refused to do so. He discarded the

pick handle and lunged at her with a knife. He stabbed her left breast and the

blade of the knife buckled as it hit her breastbone. He lunged at her again

and she kicked him. He lost his balance and she managed to escape through

a door. He left the scene with a number of valuables.8

[5] This summary of the attack was based on the evidence of the plaintiff

which was before the Constitutional Court. No further evidence was led in

this regard and the trial Court adopted the summary as its finding of fact.9

Neither court found that Coetzee attempted to rape the plaintiff, something

alleged by her in the particulars of claim. There was also no finding that the

assault had been indecent or committed with an indecent intent.

[6] In her fairly extensive statement to the police, too, there was no

suggestion of an attempted rape.10 That is the reason, one assumes, why

Coetzee was charged with attempted murder and housebreaking and theft

but not rape. During her evidence in chief in the criminal trial she also did

not refer to an attempted rape. The closest she came to the subject of rape

was when she dealt with the events that preceded the stabbing. She said:

‘. . . well he had a knife in his mouth most of the time and then he kept threatening me

with, by saying that I must turn around [she was on her knees] and he is going to count to

three otherwise he is going to hit me with the stick. And then he threw the stick aside and

8
Carmichele (CC) para 21.
9
Carmichele (CPD) para 7.
10
The date stamp on the statement indicates that it was made later the same day but the content indicates
 6

pulled, took the knife out of his mouth and stood over me and stabbed me [in the chest].’

During cross-examination she stated that Coetzee had not said what he

intended doing after she had turned around but she added

‘I kind of felt that he wanted to rape me.’

At the criminal trial Coetzee’s plea explanation, namely that the motive for

the attack was because she had caught him burgling the home of Gösling,

was put to the plaintiff and she did not suggest otherwise. Coetzee, it might

be mentioned, had been suspected previously, at least by Gösling, of being a

petty burglar and thief. Immediately after this event he broke into another

home, which was unoccupied, and stole some insignificant items. He was

convicted not only of attempting to murder the plaintiff, but on two counts

of housebreaking and theft as well.

[7] At the trial in the Court below, the plaintiff explained that Coetzee

wanted her to turn around and lie down on the floor facing the ground. She

recalled, she said, ‘thinking’ at the time that he wanted to rape her. When

cross-examined on the proceedings in the criminal court, she said that since

she was there she knew that he wanted to rape her. She conceded, however,

that Coetzee never said or suggested that he was going to rape her and that,

apart from the request to lie on her stomach, there was nothing else on which

her inference was based.

[8] The thought of rape had, no doubt, crossed the plaintiff’s mind

that it must have been made at the earliest later the next day.
 7

because she knew Coetzee, she had been told that he had a previous

conviction for rape, she believed that he had raped Ms E.T. and she and,

especially, Gösling believed that he was a menace to society who should be

behind bars. But all this does not mean that any indecent intention on the

part of Coetzee was established on a balance of probability.

The case of E.T.

[9] On Monday 6 March 1995, Coetzee appeared before a magistrate at

Knysna on a charge of rape. It was his first appearance on the charge, the

crime having been committed during the preceding Friday night. The State

was not ready to proceed and applied for a postponement, which was

granted. Coetzee presumably applied for bail but in the event, as mentioned,

the prosecutor did not oppose his release and in fact recommended that he be

released on warning.

[10] At the time the police docket indicated that Coetzee had, apparently

(‘blykbaar’), been involved in a prior rape case. The information came from

the complainant’s mother. There was a statement by the complainant, taken

on the Saturday morning, describing an attempted murder (he told her that

he was going to kill her and he throttled her until she lost consciousness) and

a rape (or at least an attempted rape) by Coetzee whom she knew quite well.
 8

The police officer who took her statement completed a form setting out the

visible injuries to her face and leg. This and an investigation at the scene of

the crime corroborated her version. Importantly, there was a warning

statement by Coetzee to the investigating officer in which he said that he

thought that he might have throttled the complainant;11 that he had been

under the influence of liquor but knew what he was doing; that he could not

dispute that he had raped her or had sexual relations with her; and that he

had, after the event, contacted the police. Although not reflected in the

docket at the time, Coetzee, after having left an hotel in the company of the

complainant that Friday night, returned and alleged that he had killed

someone and asked that the police be called. That was done but in the

absence of any further information relating to the murder Coetzee was

arrested for being drunk in public.

[11] Primary responsibility for the contents of a docket rests with the

investigating officer, in this case one Klein who, at the time, was an

experienced detective sergeant of fifteen years’ standing. Klein had to hand

the docket to a superior officer, the then Captain Hugo, whose task it was to

inspect the contents of the docket and give instructions in relation to the

further investigation or its disposal. The docket provides for a

recommendation by the investigating officer in relation to bail and, as said,

Klein recommended that Coetzee be released on his own recognisance. The

11
The sentence reads: ‘Ek weet nie ek dink ek het die klaagster verwurg.’
 9

Court below rejected his explanation for this since it found that Klein had

falsified his diary.12 There can be no doubt that he did, unfortunately a not

uncommon occurrence,13 but in the light of my approach to the case not

much turns on this.

[12] Captain Hugo inspected the docket on the Sunday evening preceding

Coetzee’s first court appearance, not only as a matter of routine but also for

the purpose of that appearance where the release of the accused on bail or

otherwise would have arisen. He read through the docket, noted what still

had to be done, and, significantly, endorsed Klein’s recommendation that

Coetzee be released with a warning. I say ‘significantly’ because he

conceded, quite rightly, that there was nothing in the docket which justified

the recommendation. In spite of this he did not contact Klein to establish the

basis for Klein’s recommendation.

[13] On the Monday morning the docket went to the court prosecutor (one

Olivier) who drafted a charge sheet and from there to the control prosecutor,

Ms Louw. She, too, went through the docket in order to instruct Olivier how

to deal with the matter and to report to the (then) Attorney General – since

the charge indicated was one of rape – who had to decide whether to

prosecute in the High Court or in a regional court. Both she and Olivier

failed to note that the facts in the docket disclosed an attempted murder. She

12
Carmichele (CPD) para 16.
13
Also in other jurisdictions: Kent v Griffiths & Others [2000] 2 WLR 1158 (CA); [2000] EWCA Civ 25.
 10

endorsed the recommendation which had emanated from Klein without ado.

What followed is already known.

Plaintiff’s case based on the events until 6 March 1995

[14] The facts concerning the case of E.T. gave rise to the plaintiff’s

principal cause of action against the two Ministers.14 She contends that

Coetzee should have remained in detention and that he was released by the

Magistrate due to the negligence of Klein, Hugo and Louw. Carmichele

(SCA) para 12 disposed of this issue on a simple ground:

‘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.’

Carmichele (CC) para 67 overruled this finding in these terms:

‘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.’

[15] The matter has therefore to be considered afresh. In this regard the

14
The vicarious liability of the Ministers is not in issue.
 11

Constitutional Court said:15

‘The applicant’s [the plaintiff’s] claim is founded in delict. The direct cause of the

damages she suffered was the assault by Coetzee. However, the applicant wishes to hold

the respondents [the present appellants] liable because of the alleged wrongful acts or

omissions of the police officer (Klein) or the prosecutors (Louw and Olivier) at times

when they were acting in the course and scope of their employment with the State. In

order to succeed, the applicant would have to establish at the trial that:

(1) Klein or the prosecutors respectively owed a legal duty to the applicant to

protect her;

(2) Klein or the prosecutors respectively acted in breach of such a duty and
did so negligently;
(3) there was a causal connection between such negligent breach of the duty
and the damage suffered by the applicant.’
[16] At least now the plaintiff’s case is somewhat different. She had never

restricted her case against the police to the negligence of Klein and during

the course of the defendants’ case Hugo’s negligence was fully canvassed.

Olivier’s role in the case was minimal and can be discounted in the larger

scheme of things. However, before assessing the validity of the plaintiff’s

claim in relation to the events that terminated on 6 March, I wish briefly to

deal with the other legs of her case for the sake of completeness.

The events culminating on 18 April 199516

[17] On 13 March 1995, Coetzee’s mother informed a family member,

15
Carmichele (CC) para 25.
16
Carmichele (CC) para 17-21.
 12

Detective Sergeant Grootboom, who was also stationed at the Knysna police

station that she was concerned about Coetzee, who was withdrawn, and she

feared he might attempt suicide or ‘get up to something’. When they arrived

at her home they found that Coetzee had indeed attempted suicide.

Grootboom took him to hospital where he was treated. On the following day,

14 March 1995, Grootboom took Coetzee to Louw. She interviewed him and

he told her that he did not know why he committed the offence and that at

the time was not aware of what he was doing. He told her that he had

suffered from deviant sexual behaviour since he was about 10 years old. He

said that it was as if a ‘superhuman, unnatural force’ overcame him and he

then committed an act of which he had no knowledge.

[18] As a result of this interview, Louw decided that Coetzee should be

referred for psychiatric observation. He was brought before the court on 15

March 1995. At the request of the prosecutor and with his consent, Coetzee

was referred in custody to Valkenberg Hospital in Cape Town for 30 days’

observation in terms of section 77(1) of the Criminal Procedure Act. The

purpose of a referral under that provision is to ascertain whether an accused

person is by reason of mental illness or mental defect incapable of

understanding trial proceedings so as to make a proper defence.

[19] On 18 April 1995, on his return from Valkenberg Hospital, Coetzee

again appeared in the Knysna magistrate’s court. According to the report

 13

from Valkenberg Hospital Coetzee was mentally capable of understanding

the proceedings and able to make a proper defence, and was also found to

have been mentally capable at the time of his attack on E.T.. The report also

mentioned that his initial amnesia of the events spontaneously resolved

itself. Coetzee was warned to appear on a later date.

[20] The case of the plaintiff in this regard is that Louw, in the light of the

additional knowledge she now had of the deviant behaviour of Coetzee,

should have opposed his release on 18 April 1995 by using ‘the available

machinery in the Criminal Procedure Act’. These words were not considered

by this Court in Carmichele (SCA). The Constitutional Court, in footnote 71

of Carmichele (CC), noted guardedly:

‘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.’

The caveat went unheeded in the Court below and it simply proceeded on

the basis that there must have been some such provision in the Act. To the

contrary, there was none and counsel for the plaintiff did not suggest

otherwise in this Court. When Louw, confronted by Gösling at the time, said

that her hands were tied, she was right and the scorn poured on her not

justified.
 14

The snooping incident17

[21] The plaintiff frequently stayed at Gösling’s home at Noetzie. On one

such occasion towards the end of June 1995, Gösling left for work in the

morning. Shortly after she had left, the plaintiff noticed Coetzee snooping

around the house, looking in at a window and ‘trying to open it’. The

plaintiff called and asked what he was doing there. He replied that he was

looking for Gösling and he then left. She telephoned Gösling and reported

the incident. Gösling informed her that Coetzee’s excuse was false as he

must have seen her driving away in her motor vehicle.

[22] At the request of the plaintiff, Gösling again went to the Knysna

police station and reported the incident to Captain Oliver who referred her to

Louw. According to Gösling’s evidence

‘I said Dian you’ve got to do something about this guy, there must be some law to protect

society, not necessarily me or people at Noetzie and she said to me that there was nothing

she could do.’

[23] The plaintiff’s case, based on these facts, is based on the failure of

Louw – and not of the police – for not having used ‘the available machinery’

in the Act to either ‘keep’ Coetzee in custody or ‘add sufficient suitable

conditions to restrict him’ (presumably to his release warning). The short

answer to the case as pleaded is that, first, he could not have been kept in

custody since he was not in custody and, second, as the Act then stood,

17
Carmichele (CC) para 21-22.
 15

conditions could not have been added to his release warning at that stage.

[24] The argument before us differed from that foreshadowed in the

pleadings. The case is now that a complaint had been laid that Coetzee had

attempted to burgle the house and had trespassed on Gösling’s property;

Louw should have given Gösling the advice to lay charges against him; he

would then have been arrested; all the facts concerning his deviant behaviour

should then have been placed before the court had he applied for bail; bail

would have been refused; and there would not have been the possibility of

an attack on the plaintiff. Carmichele (CPD) para 26 found the argument

attractive. I find that it fails at the outset because it is based on false

premises.

[25] As far as the trespassing is concerned, this Court in Carmichele (SCA)

para 13 said:

‘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.’

And (at para 19):

‘It is, moreover, highly questionable whether a later charge of trespass would have

resulted in Coetzee’s incarceration in any event.’

No new facts bearing on these findings were placed before the Court below.

Having reconsidered the evidence I respectfully wish to adopt the views of

Carmichele (SCA) in this regard.

 16

[26] It is not without significance that Carmichele (SCA) did not have

regard to the question of an attempted housebreaking. Carmichele (CC)

referred to the fact that Coetzee was ‘trying to open’ the window without

suggesting that it amounted to an attempted housebreaking. The only witness

to the event was the plaintiff. In her words, the following happened:

‘. . . later I saw Francois Coetzee snooping around the house and looking at the window.

He seemed to be pushing – trying to push the window open.’

What she reported to Gösling, she said, was that Coetzee

‘had been looking in at the windows of the house . . .’.

That is the sum total of the admissible evidence concerning the event.

Gösling, on a fair conspectus of her evidence, was rather inconsistent about

what she had conveyed to either Oliver or Louw in this regard. On occasion

her complaint was that Coetzee ‘was hanging around’ her house; then that

‘he appeared to be trying to get into the window’; later that he ‘looked in

through the window’; and also that it ‘looked as though he was trying to get

in through the window’.

[27] Oliver, who testified for the plaintiff, did not appear to appreciate that

a criminal complaint was being laid. He was dealing with her unhappiness

about the fact that Coetzee had been released on bail. Gösling knew that if a

crime had been committed she could lay a charge, which she never did. She

herself drew a distinction between a charge and a complaint. Hers was a

complaint, she said, because of the fact that someone who committed a
 17

serious offence had been released and she feared that he might commit

another. She thought that he had to be removed from society because she

knew from her experience as a nurse that someone who had committed two

serious crimes would do so again.

[28] This summary, I believe, establishes conclusively that there was no

justification for any steps being taken under the Criminal Procedure Act

against Coetzee and that there is no merit in the suggestion that Coetzee

should or even could have been arrested on this ‘evidence’.

Wrongfulness

[29] What then has to be determined is whether the facts surrounding the

release of Coetzee on 6 March 1995 gave rise to delictual liability on the

part of the State. It is appropriate to recap at this juncture the history of this

case in relation to this aspect. As mentioned, at the absolution stage Chetty J

found that a prima facie case of wrongfulness was not established. This

finding was upheld by Carmichele (SCA). The Constitutional Court, whilst

upholding the appeal, did not find that this element had been established.18

Instead, it found that, in spite of the fact that the plaintiff had previously

specifically disavowed any reliance on the Constitution, superior courts still

have a duty to consider in every appropriate case whether the common law
 18

deviates from the spirit, purport and objects of the Bill of Rights. If it does,

courts have an obligation to remove the deviation.19 The court of first

instance and this Court

‘assumed that the pre-constitutional test for determining the wrongfulness of omissions in

delictual actions of this kind should be applied. In our respectful opinion, they
20
overlooked the demands of section 39(2) [of the Constitution].’

[30] The possibility was mooted that the existing test for wrongfulness

‘might well have to be replaced, or supplemented and enriched by the appropriate norms
21
of the objective value system embodied in the Constitution.’

Absolution at the end of the plaintiff’s case or an exception is not necessarily

the appropriate manner of dealing with matters such as this and, although

this Court adopted the correct test for absolution,22 it was wrongly applied.23

[31] Carmichele (CC) para 44 held that the Constitution imposes a duty on

the State and all of its organs not to perform any act that infringes the

entrenched rights such as the right to life, human dignity, and freedom and

security of the person.

‘In some circumstances there would also be a positive component which obliges the State

and its organs to provide appropriate protection to everyone through laws and structures

18
Carmichele (CC) para 81.
19
Carmichele (CC) para 33.
20
Carmichele (CC) para 37.
21
Carmichele (CC ) para 56.
22
Gordon Lloyd Page & Associates v Rivera and Another 2001 (1) SA 88 (SCA) 92E-93A.
23
Carmichele (CC) para 80. As to the dangers of applications for absolution from the instance: De Klerk v
Absa Bank Ltd and Others 2003 (4) SA 315 (SCA) para 1 and 43. The English cases that are usually cited
in matters such as this have, invariably, been decided on an exception basis and are consequently of limited
value.
 19

designed to afford such protection.’

[32] Since it is not the case that the State was in breach of the obligation to

provide ‘laws and structures’, Carmichele (CC) para 45 quoted Osman v

United Kingdom,24 a judgment of the European Court of Human Rights

(‘ECHR’), with apparent approval:

‘. . . the State’s obligation in this respect extends beyond its primary duty to secure the

right to life by putting in place effective criminal law provisions to deter the commission

of offences against the person backed up by law-enforcement machinery for the

prevention, suppression and sanctioning of breaches of such provisions. It is thus

accepted by those appearing before the Court that Article 2 [which deals with the

protection of the right to life] of the Convention may also imply in certain well-defined

circumstances a positive obligation on the authorities to take preventive operational

measures to protect an individual whose life is at risk from the criminal acts of another
25
individual.’ (My insert and emphasis.)

[33] The subsequent paragraph 116 from Osman, which was not quoted, is

also significant:

‘For the Court, and bearing in mind the difficulties involved in policing modern societies,

the unpredictability of human conduct and the operational choices which must be made in

terms of priorities and resources, such an obligation must be interpreted in a way which

does not impose an impossible or disproportionate burden on the authorities.

Accordingly, not every claimed risk to life can entail for the authorities a Convention

24
29 EHHR 245 at 305; [1998] 5 BHRC 293 para 115.
25
In this case the complaints were directed at the failure of the authorities to appreciate and act on what
they claim was a series of clear warning signs that one P represented a serious threat to the physical safety
of A and his family. P killed A’s father and wounded A in a shooting incident. The Court found that there
was no breach of art 2 of the Convention.
 20

requirement to take operational measures to prevent that risk from materialising. Another

relevant consideration is the need to ensure that the police exercise their powers to

control and prevent crime in a manner which fully respects the due process and other

guarantees which legitimately place restraints on the scope of their action to investigate

crime and bring offenders to justice . . ..

In the opinion of the Court where there is an allegation that the authorities have

violated their positive obligation to protect the right to life in the context of their above-

mentioned duty to prevent and suppress offences against the person (see paragraph 115

above), it must be established to its satisfaction that the authorities knew or ought to have

known at the time of the existence of a real and immediate risk to the life of an identified

individual or individuals from the criminal acts of a third party and that they failed to take

measures within the scope of their powers which, judged reasonably, might have been

expected to avoid that risk. . . . For the Court, and having regard to the nature of the right

protected by Article 2, a right fundamental in the scheme of the Convention, it is

sufficient for an applicant to show that the authorities did not do all that could be

reasonably expected of them to avoid a real and immediate risk to life of which they have

or ought to have knowledge. This is a question which can only be answered in the light of

all the circumstances of any particular case.’ (Emphasis added.)

[34] Since Carmichele (CC) this Court, in a number of matters, has had to

reconsider the test for wrongfulness in the light of constitutional demands.

Counsel did not criticise the ‘new’ approach as set out in these cases.26 I do

not wish to reformulate the principles.

26
Especially relevant to the present case are Minister of Safety and Security v Van Duivenboden 2002 (6)
SA 431 (SCA); Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as Amicus
Curiae) 2003 (1) SA 389 (SCA).
 21

[35] In order to assess whether Hugo and Louw had a public law duty to

oppose bail, one has to consider the information at their disposal as it

appeared from the docket. In this case, the departmental instructions to both

the police and to prosecutors made it clear that they had a duty to oppose any

bail application in a case such as that of Coetzee. That they should have

opposed Coetzee’s release Hugo and Louw admitted – albeit in retrospect.

[36] Their public duty must be assessed in the light of the dicta in

Carmichele (CC) where it was said, that the police service

‘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’ (para 62)

and that prosecutors

‘have always owed a duty to carry out their public functions independently and in the

interests of the public. Although the consideration of bail is pre-eminently a matter for

the presiding judicial officer, the information available to the judicial officer can but

come from the prosecutor. He or she has a duty to place before the court any information

relevant to the exercise of the discretion with regard to the grant or refusal of bail and, if

granted, any appropriate conditions attaching thereto.’(Para 72.)

At least as far as the police are concerned, this is nothing new.27 The

vicarious liability of the State for those of its employees who have to

exercise discretions is also well established.28 It follows that there can be

27
Cf Minister van Polisie v Ewels 1975 (3) SA 590 (A); Minister of Police v Skosana 1977 (1) SA 31 (A).
28
Minister van Polisie an ‘n ander v Gamble en ‘n ander 1979 (4) SA 759 (A).
 22

little doubt that in the light of the particular facts of this case both Hugo and

Louw had a public law duty to either oppose bail or to place all relevant and

readily available facts before the Court, and that they failed in their duty.

[37] The next inquiry is whether this public law breach of duty can be

transposed into a private law breach leading to an award of damages. The

answer, I believe, has already been provided in Van Duivenboden29 and in

Van Eeden30 and applied more recently in Hamilton.31 I quote at length from

what was said in Van Duivenboden para 21-22 because most, if not all, the

considerations there mentioned apply here:

‘Where the conduct of the State, as represented by the persons who perform functions on

its behalf, is in conflict with its constitutional duty to protect rights in the Bill of Rights

the norm of accountability assumes an important role in determining whether a legal duty

ought to be recognised in any particular case. The norm of accountability, however, need

not always translate constitutional duties into private law duties enforceable by an action

for damages, for there will be cases in which other appropriate remedies are available for

holding the state to account. Where the conduct in issue relates to questions of State

policy, or where it affects a broad and indeterminate segment of society, constitutional

accountability might at times be appropriately secured through the political process, or

through one of the variety of other remedies that the courts are capable of granting. . . .

There are also cases in which non-judicial remedies, or remedies by way of review and

mandamus or interdict, allow for accountability in an appropriate form and that might

29
Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA).
30
Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as Amicus Curiae) 2003 (1)
SA 389 (SCA).
31
Minister of Safety and Security v Hamilton an unreported judgment of this Court delivered on 26
 23

also provide proper grounds upon which to deny an action for damages. However where

the State’s failure occurs in circumstances that offer no effective remedy other than an

action for damages the norm of accountability will, in my view, ordinarily demand the

recognition of a legal duty unless there are other considerations affecting the public

interest that outweigh that norm. . . ..’

‘Where there is a potential threat of the kind that is now in issue the constitutionally

protected rights to human dignity, to life, and to security of the person, are all placed in

peril and the State, represented by its officials, has a constitutional duty to protect them. It

might be that in some cases the need for effective government, or some other

constitutional norm or consideration of public policy, will outweigh accountability in the

process of balancing the various interests that are to be taken into account in determining

whether an action should be allowed . . . but I can see none that do so in the present

circumstances. We are not concerned in this case with the duties of the police generally in

the investigation of crime. I accept (without deciding) that there might be particular

aspects of police activity in respect of which the public interest is best served by denying

an action for negligence, but it does not follow that an action should be denied where

those considerations do not arise. . . . There was no suggestion by the appellant that the

recognition of a legal duty in such circumstances would have the potential to disrupt the

efficient functioning of the police, or would necessarily require the provision of

additional resources, and I see no reason why it should otherwise impede the efficient

functioning of the police – on the contrary the evidence in the present case suggests that it

would only enhance it. There is no effective way to hold the State to account in the

present case other than by way of an action for damages, and in the absence of any norm

or consideration of public policy that outweighs it the constitutional norm of

September 2003.
 24

accountability requires that a legal duty be recognised. The negligent conduct of police

officers in those circumstances is thus actionable and the state is vicariously liable for the

consequences of any such negligence.’

[38] From this it follows that where, as in circumstances such as the

present described in more detail in para 44, someone in the position of the

plaintiff has no other effective remedy against the State, an action for

damages is the norm unless public policy considerations point in the other

direction.

[39] The position of prosecutors can in principle be no different from that

of the police and this accords with what Carmichele (CC) para 74 had to say

about their possible liability:

‘That said, each case must ultimately depend on its own facts. There seems to be

no reason in principle why a prosecutor who has reliable information, for example, that

an accused person is violent, has a grudge against the complainant and has threatened to

do violence to her if released on bail should not be held liable for the consequences of a

negligent failure to bring such information to the attention of the Court. If such

negligence results in the release of the accused on bail who then proceeds to implement

the threat made, a strong case could be made out for holding the prosecutor liable for the

damages suffered by the complainant.’

[40] The question is then whether, in the circumstances of this case, there

are public policy considerations that point in another direction. The

appellants submitted that Hugo and Louw were merely guilty of a reasonable

error of judgment and that, for that reason, a duty of care should not be
 25

imputed to them. Recently this Court held that:

‘In determining the accountability of an official or member of government towards a

plaintiff, it is necessary to have regard to his or her specific statutory duties, and to the

nature of the function involved. It will seldom be that the merely incorrect exercise of a
32
discretion will be considered to be wrongful.’

The validity of the point may be illustrated by a case where, in exercise of its

discretion, a parole board orders the release of a prisoner.33 In this case the

discretion was different, at least qualitatively, but apart from that, I am

satisfied that on their own evidence neither Hugo nor Louw in fact exercised

any discretion. They simply rubber-stamped a recommendation that had no

foundation.

[41] Another argument raised by the appellants in submitting that there

should be a departure from the norm of State accountability is the absence of

any proximity between the plaintiff on the one hand and the police and

prosecutors on the other. Proximity is a requirement for establishing a duty

of care in English law34 in order to ground liability under the tort of

negligence and was adopted by Scots law.35 But proximity, in our law, is not

32
Premier of the Western Cape v Fair Cape Property Developers (Pty) Ltd [2003] 2 All SA 465 (SCA)
para 37.

33
Cf the facts in K v The Secretary of State for the Home Department 2002 EWCA Civ 775 in which the
Secretary for State did not deport a dangerous criminal who, subsequently raped the plaintiff. An action
was denied to the plaintiff but not on the ground now under discussion.
34
Caparo plc v Dickman [1990] 2 AC 605.
35
Gibson v Orr [1999] Scot CS 61.
 26

36
a self-standing requirement for wrongfulness. Likewise, the requirement

of a special relationship (which is in my view just another label for

proximity) is not essential for wrongfulness.37 However, if there is in fact

some connecting factor between the plaintiff and the defendant, it is more

likely that in the case where the defendant is an individual the breach of a

duty might arise; and in the case where the defendant is the State it is less

likely that there will be any deviation from the norm of accountability that

the Constitution imposes.

[42] This aspect may have a bearing on some remarks made in Carmichele

(CC) para 29 and 62 and in Carmichele (CPD) para 30. Both emphasised,

quite rightly, the special constitutional duty of the State to protect women

against violent crime in general and sexual abuse in particular. But this

should not be seen as implying that the State’s liability in a case such as this

is necessarily determined by or dependent on the sex of the victim or the

nature of or motive behind the assault.

[43] Did the State owe a duty to the plaintiff? The answer lies in the

recognition of the general norm of accountability: the State is liable for the

36
See also Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA) para 20. Carmichele (CC)
para 49 referred to it in a discussion of the attitude of the ECHR to the perceived English law doctrine of
immunity. I suspect that the understanding of Carmichele (CC) para 48 of the judgment of the ECHR in Z
and Others v United Kingdom [2001] 10 BHRC 384 may be wrong. It did not hold that the immunity
approach of the English law meant that the applicant s did not have available appropriate means of
obtaining a determination of their allegations. On the contrary, the ECHR conceded (at para 100) that it had
erred in Osman v United Kingdom 29 EHHR 245; [1998] 5 BHRC 293 para 115 in holding that a doctrine
of immunity existed in English law. What it held was since the matter had been decided in a procedure
similar to our exception procedure, and without a full trial, the applicants had been denied an appropriate
means to establish whether a duty of care in fact existed.
 27

failure to perform the duties imposed upon it by the Constitution unless it

can be shown that there is compelling reason to deviate from that norm. In

Van Eeden38 it is suggested that such a deviation might be warranted where

it would not be in the public interest to inhibit the police (and by parity of

reasoning the prosecution) in the proper performance of their duty. A

deviation was not, however, considered to be necessary in that case.

[44] Nor is there reason in this case to depart from the general principle

that the State will be liable for its failure to comply with its Constitutional

duty to protect the plaintiff. On the contrary, the plaintiff is pre-eminently a

person who required the State’s protection. It was known by Klein, Hugo

and Louw that Coetzee resided in Noetzie with his mother. Noetzie is a

small hamlet with a few houses. Coetzee’s mother worked for Gösling in the

house where the attack on the plaintiff occurred. She regularly visited the

house. She knew Coetzee. The attack took place within four months after his

release after the attack on E.T.. The plaintiff was thus not simply a member

of the public whom the State had a duty to protect. She was a member of a

class of people whom the State would have foreseen as being potential

victims of another attack by Coetzee. Proximity, while not an independent

requirement for wrongfulness, must surely reinforce the claim that the State

should be held liable for a culpable failure to comply with its duties. And

37
Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA) para 22.
38
Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA).
 28

foreseeability of harm is another factor to be taken into account in

39
determining wrongfulness. The greater the foreseeability, the greater the

possibility of a legal duty to prevent harm existing. This can be compared to

the development in English law in relation to the tort known as misfeasance

by a public officer. An element of this tort is, in our terms, dolus directus or

eventualis: if a public officer knows that his unlawful conduct will probably

injure another or a class of persons, the State may be liable for the

consequences.40 (The question of foreseeability arises also, of course, when

determining negligence: but it may in appropriate cases play a role in

determining whether the defendant should be held liable for failure to

perform a duty.)

Negligence

[45] The test for determining negligence is that enunciated in Kruger v

Coetzee: 41

“For the purposes of liability culpa arises if –

(a) a diligens paterfamilias in the position of the defendant–

(i) would foresee the reasonable possibility of his conduct injuring another . .

. and causing him . . . loss; and

39
BoE Bank Ltd v Ries [2002] 2 All SA 247 (A); 2002 (2) SA 39 (SCA) para 21: ‘Such foreseeability is
often an important, even a decisive factor in deciding whether wrongfulness has been established, but it is
not in itself enough . . .’. Premier of the Western Cape v Fair Cape Property Developers (Pty) Ltd [2003] 2
All SA 465 (SCA) para 42

40
Akenzua and Another v Secretary of State for the Home Department [2003] 1 All ER 35 (CA);
[2002]EWCA Civ 1470.
 29

(ii) would take reasonable steps to guard against such occurrence; and

(b) the defendant failed to take such steps.”

But

‘it should not be overlooked that in the ultimate analysis the true criterion for determining

negligence is whether in the particular circumstances the conduct complained of falls

short of the standard of the reasonable person. Dividing the inquiry into various stages,

however useful, is no more than an aid or guideline for resolving this issue.

It is probably so that there can be no universally applicable formula which will

42
prove to be appropriate in every case.’

And

‘it has been recognised that while the precise or exact manner in which the harm

occurs need not be foreseeable, the general manner of its occurrence must indeed be
43
reasonably foreseeable’.

Further

‘In considering this question [what was reasonably foreseeable], one must guard

against what Williamson JA called “the insidious subconscious influence of ex post facto

knowledge” (in S v Mini 1963 (3) SA 188 (A) at 196E–F). Negligence is not established

by showing merely that the occurrence happened (unless the case is one where res ipsa

loquitur), or by showing after it happened how it could have been prevented. The diligens

paterfamilias does not have ‘prophetic foresight’. (S v Burger (supra at 879D).) In

Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound)

41 1966 (2) SA 428 (A) at 430E–F.

41

42
Sea Harvest Corporation (Pty) Ltd and another v Duncan Dock Cold Storage (Pty) Ltd and another
[2000] 1 All SA 128 (A); 2000 (1) SA 827 (SCA) para 21-22.

43
Ibid para 22.
 30

1961 AC 388 (PC) ([1961] 1 All ER 404) Viscount Simonds said at 424 (AC) and at

414G – H (in All ER):

“After the event, even a fool is wise. But it is not the hindsight of a

fool; it is the foresight of the reasonable man which alone can determine responsibility.”
44
’

[46] For present purposes I intend first to inquire whether a reasonable

police captain (in the position of Hugo) and a reasonable control prosecutor

(in the position of Louw) would have recommended to a court, with the

information at their disposal, that Coetzee should be released, whether on

bail or with a warning.

[47] Both witnesses gave essentially one reason for their decision. They

had relied on the opinion of an experienced detective, namely Klein. Quite

obviously, persons in their position are entitled to rely on the opinion of

another in relation to matters such as this but that did not entitle them to rely

blindly on such an opinion where there was nothing in the docket which

justified the opinion. It would have been a fairly simple matter in these

circumstances at least to have asked Klein for an explanation. (We now

know that he had none.) They both had read and studied the docket

independently, as they were obliged to do (as explained above) and they

knew what it contained. They were obliged, considering the nature of the

crime, each to have made an independent assessment. The departmental

44
S v Bochris Investments (Pty) Ltd and another 1988 (1) SA 861 (A) 866J-867B quoted in Sea Harvest
 31

guidelines issued to both of them required of them to have opposed bail. It is

not a case where they had not read the docket due to time or other

constraints or where there was no departmental duty to read the docket. In

holding that reasonable persons in the position of Hugo and Louw would not

have relied exclusively on the opinion of the investigating officer, I am not

suggesting that in appropriate circumstances they could not have relied

thereon; and I am not suggesting that in every case there rests a duty on them

to read or study the docket. Negligence depends on the facts of a particular

case.45

[48] Another reason for their recommendation, which may be inferred

from their evidence but which was never stated by them, is the fact that

courts granted bail easily at the time. An example was given of a case in

which a person charged with murder was released on bail. Conspicuously

absent is any detail whatsoever relating to the nature or prospects of the case

or the bail conditions.

[49] Obviously, if Hugo and Louw had reasonable grounds for believing

that opposing the grant of bail would have amounted to a mere formality

with no reasonable prospect of success, their failure would not have

amounted to negligence. Their evidence does not suggest that. In any event,

theirs was a simple decision, namely whether or not to oppose. They were

para 23.
45
Cf Carmichele (CC) para 73.
 32

not required to make the ultimate decision. That was for the Magistrate. As I

assess their evidence, it amounts to no more than that there were cases

involving serious crimes where bail had been granted. It was not that

opposing applications for bail, even in serious cases, would have been a

hopeless exercise. In other words they were not required to attack a

windmill.

[50] From this I conclude that a reasonable person in the position of both

Hugo and Louw would not have made the recommendation and would, at

least, have placed the relevant facts at their disposal before the Court. This

they did not do.

[51] The next aspect to consider is whether persons in their position would

have foreseen the reasonable possibility that their conduct could have led to

a further crime of violence being committed by Coetzee, bearing in mind

that

‘the precise or exact manner in which the harm occurs need not be foreseeable, [but] the
46
general manner of its occurrence must indeed be reasonably foreseeable’.

In this context regard must be had to the unpredictability of human

behaviour. As was said in a slightly different context in Palmer v Tees

Health Authority and Another:47

‘Mr Sherman posed the example of a car mechanic who negligently failed to

46
Sea Harvest para 22 quoted earlier.
 33

adjust the brakes of his customer’s car, so that it went out of control and killed a

psychiatrist’s child. Liability would be established because there is sufficient proximity,

even though the child was unidentified or unidentifiable, and is merely one of a large

class of potential victims. If the psychiatrist negligently failed to diagnose, treat or

restrain a psychopathic murderer who killed the mechanic’s child why, asks Mr Sherman,

should the psychiatrist not be equally liable?

The answer to Mr Sherman’s question is that a defective machine or mechanical device

will behave in a predictable way depending on the laws of physics and mechanics. But a

human being will not, save in readily predictable circumstances.’

[52] Turning then to the most pertinent fact available to Hugo and Louw at

the time: They were dealing with a young male (he was 21 years of age at

the time) with a possible previous conviction for rape who had attempted to

murder and rape a friend of his. Is it not very likely that such a person could

do the same or something similar if not detained? I would think that the

answer must be in the affirmative and, I may add, both Hugo and Louw

admitted as much, albeit not in these stark terms and with the added wisdom

of hindsight seven years after the event.

[53] The last stage of the inquiry relating to negligence is whether there

were reasonable steps that they could have taken to prevent Coetzee’s

release and which they failed to take. The answer is self-evident – they

would have opposed bail – and the conclusion is that negligence has been

established.

47
[1999] EWCA Civ 1533 para 24-25.
 34

Causation

[54] Causation, like negligence, was not an issue in Carmichele (SCA) and

although it was considered by Carmichele (CC) para 75-77, the

Constitutional Court left the matter for the decision of the trial court. Chetty

J came to the conclusion that there was a causal link between the negligence

referred to and the plaintiff’s damages. The matter is complicated by the fact

that Coetzee was released in terms of a court order and not by Hugo or

Louw. This intervening fact, which might even amount to a novus actus

interveniens, raises a number of difficult questions. It is not in issue,

however, that but for the intervening court order a factual causal link

between the negligence and the plaintiff’s damages was established.

[55] Causation has two elements. The first is the factual issue which has to

be established on a balance of probabilities by a plaintiff48 and the answer

has to be sought by using the ‘but-for’ test:49

‘In order to apply this test one must make a hypothetical enquiry as to what probably

would have happened but for the wrongful conduct of the defendant. This enquiry may

involve the mental elimination of the wrongful conduct and the substitution of a

hypothetical course of lawful conduct and the posing of the question as to whether upon

48

48 International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) 700E–701F.
49

49 De Klerk v Absa Bank Ltd and Others 2003 (4) SA 315 (SCA).
 35

such an hypothesis plaintiff’s loss would have ensued or not. If it would in any event

have ensued, then the wrongful conduct was not a cause of the loss; aliter, if it would not

have ensued.’

[56] To this, Van Duivenboden para 25 added:

‘There are conceptual hurdles to be crossed when reasoning along those lines for once the

conduct that actually occurred is mentally eliminated and replaced by hypothetical

conduct questions will immediately arise as to the extent to which consequential events

would have been influenced by the changed circumstances. Inherent in that form of

reasoning is thus considerable scope for speculation . . .. A plaintiff is not required to

establish the causal link with certainty but only to establish that the wrongful conduct was

probably a cause of the loss, which calls for a sensible retrospective analysis of what

would probably have occurred, based upon the evidence and what can be expected to

occur in the ordinary course of human affairs rather than an exercise in metaphysics.’

[57] An intriguing aspect raised by Carmichele (CC) para 76, but left for

later decision, is whether an objective or subjective test should be applied in

determining causation. In the ordinary case the question does not arise but in

this case, because one has to postulate a hypothetical judgment by a judicial

officer exercising a discretion, it does. An objective test would mean that the

Court has to determine what a reasonable magistrate, on the probabilities,

would have done. The subjective test requires the Court to establish what the

relevant magistrate would have done, something that would depend on the

relevant magistrate’s evidence or evidence of what he or she had done in

 36

similar cases in the past.

[58] The Court below answered the question posed by the Constitutional

Court thus:50

‘In its judgment, the Constitutional Court understandably favoured the objective

approach. The subjective approach would necessitate the particular judicial officer having

to testify on the hypothetical question of how he would have decided a particular case.

That would certainly not be in the interests of the administration of justice. The objective

approach eliminates that possibility. Adopting the objective approach therefore, the

question is how would the reasonable court have determined the matter.’

[59] Apart from the fact that the Constitutional Court did not, as I read its

judgment, favour any approach, I have difficulties in accepting the logic of

the argument of the Court below. The first leg of causation, being a question

of fact, cannot depend on policy considerations such as whether or not a

judicial officer should be called to testify. Causation in this type of case will

then no longer be a factual matter of what the effect of certain conduct on

the probabilities ‘would’ have been; it would then become a value judgment

of what it ‘should’ have been. Factual issues cannot be decided differently

depending on the type of case. It has to be conceded, however, that it would

be inappropriate for a particular judicial officer to testify in relation to the

hypothetical question of how he or she would have decided a particular case.

The problem becomes more complicated if, depending on the organisation of

50
Carmichele (CPD) para 36.
 37

a particular court or hypothetical postponements and the like, the identity of

the relevant magistrate cannot be established with any measure of

confidence.

[60] The solution to the conundrum appears to be this: The inquiry is

subjective in the sense that a court has to determine what the relevant

magistrate on the probabilities would have done had the application for bail

been opposed. In this regard the ex post facto evidence of the magistrate

would generally amount to an inadmissible opinion as to what his or her

state of mind would have been at some time in the past. To the extent that

the evidence is admissible it would generally be unhelpful because it would

be speculative.

[61] Courts of appeal are often called upon to decide what a reasonable

judicial officer should have done and this they do by establishing what a

reasonable judicial officer would have done. It may be presumed factually

that judicial officers conform to that norm and it is fair to deduce that any

particular judicial officer (even if his or her identity cannot be established),

on the probabilities and as a matter of fact, would have so acted. The proper

inquiry is, thus, what the relevant judicial officer, who is factually assumed

to make decisions reasonably, would, on the probabilities, have done. We

know from experience how few bail appeals emanate from Magistrates’

Courts and that a small percentage succeeds and it is thus fair to assume that
 38

magistrates on the whole tend to get bail matters right. This factual

presumption has to yield in the face of cogent evidence pointing in another

direction. An extreme example would be the case of the maverick

magistrate.

[62] To determine causation requires that we transpose ourselves back to

March 1995. The law relating to bail, at the time, was in flux (the interim

Constitution had been but a year in operation) and accused persons were

being released on bail because some courts were overawed by the

constitutional right every accused had under s 25(2)(d) of the interim

Constitution ‘to be released from detention with or without bail, unless the

interests of justice require otherwise.’

[63] The Constitutional Court recognised the uncertainty of the law

relating to bail at the beginning of the post-Constitutional era when it had to

consider the constitutionality of the amended s 60 (which came into force

after the events in this case and thus plays no role)51 of the Criminal

Procedure Act:

‘Although the transition to the new dispensation kept the general body of South African

law and the machinery of State intact, the advent of the Bill of Rights exposed all existing

legal provisions, whether statutory or derived from the common law, to reappraisal in the

light of the new constitutional norms heralded by that transition. The retention of the

existing legal and administrative structures facilitated a reasonably smooth transition

51
Criminal Procedure Second Amendment Act No. 75 of 1995 which came into effect on 21 September
 39

from the old order to the new. But the transition did have an effect on the country’s

criminal justice system. People who had acquired specialised knowledge of the system,

and had become skilled and sure-footed in its practice, were confronted with a new

environment and lost their confidence. Particularly in the lower courts, where the bulk of

the country’s criminal cases is decided, judicial officers, prosecutors, practitioners and

investigating officers were uncertain about the effect of superimposing the norms of a

rights culture on a system that had evolved under a wholly different regime; and about

the effect of that superimposition in a given case. Bail was no exception. On the contrary,

much of the public debate, and much of the concern in official circles about law
52
enforcement has been directed at the granting or refusal of bail.’

Parliament thought it wise to intervene and a substantial overhaul of the

provisions of the Act relating to bail were introduced later during 1995.

[64] All this was confirmed in evidence by the Magistrate, Mr von Bratt,

who had made the order for the release of Coetzee. He was called by the

plaintiff and said that after the advent of the interim Constitution there was

very much a renewed emphasis on personal freedom. The vast majority of

people who had been arrested on murder charges and who had appeared

before him and other magistrates at Knysna, he said, were released on bail or

on their own recognisances. In exceptional cases only were people kept in

custody. He gave no particulars of those instances and the generality of his

evidence is in that regard of little value because as Wessels JP pointed out

1995.
52
S v Dlamini; S v Dladla; S v Joubert; S v Schietekat 1999 (7) BCLR 771, 1999 (4) SA 623 (CC) para 2.
Significant is fn 6.
 40

more than 80 years ago –

‘where the personal opinions of various judges are concerned, one can always refer to

cases where bail has been given and to cases where bail has not been given, and can press

in the one case a judgment similar to that given in the case where no bail was granted,
53
and in another case a judgment similar to that given where bail was allowed.’

[65] Since in deciding this issue we are trapped in a time capsule we are to

imagine an ordinary bail hearing, one of maybe hundreds, before Mr von

Bratt or one of the other magistrates at Knysna and we have to consider what

evidence would have been placed before the court by the average prosecutor

who is not negligent.

[66] A prosecutor, I believe, would have applied for a postponement of the

bail application for a day or two in order to obtain particulars about the

alleged previous rape conviction and a report of the medical examination of

the complainant. A postponement would have been granted and on the next

occasion the information would have been available. The medical report

would have shown that the complainant’s injuries were not that serious and

that there were limited prospects of proving rape. It would have transpired

that Coetzee had no previous conviction for rape; instead there were two

previous convictions about six months old: one for housebreaking and the

other for indecent assault accompanied by physical force (‘fisiese geweld’).

53
Ali Ahmed v Attorney-General 1921 TPD 587 589. The statutory provisions relating to bail during 1921
differed from what they were during 1995 but the point is still valid.
 41

The sentence for the latter was a fine of R600 or six months’ imprisonment

but, importantly, there was a suspended sentence of a further twelve months’

hanging over his head on this conviction. The other information contained in

the docket – namely the content of the complainant’s statement and that of

Coetzee’s warning statement – would likewise have been presented to the

Court. It would have been established that, although fairly well educated, he

was unemployed, was living with his mother (a domestic with other

children) at Noetzie on a precarious basis and that he had no visible source

of income.

[67] What then would Mr von Bratt have done? He was never really asked

the question in relation to the relevant factors but only some questions about

his approach to bail in general. There is nothing that suggests that he would

have acted in some or other irrational manner. On the contrary, his answers

were quite properly in general terms and amounted to this: if the facts

justified it, he would not have released Coetzee.

[68] Argument about the factors that could have been taken into account

during March 1995 was presented to us. Much was made of whether or not a

person could have been refused bail because (as in now the case under s

60(4)(a) of the Criminal Procedure Act) there was a likelihood that the

accused, if released on bail, would endanger the safety of the public or any

particular person, or commit a serious offence. The Constitutional Court, I

 42

might mention, has held that this was a legitimate objective of bail

recognised at common law.54 Whether we are bound by this finding – the

argument assumed that we are not – I do not know but in any event I am not

sure whether magistrates in 1995 would have appreciated that such a factor

could have been taken into account.

[69] In my judgment the matter should be decided without legal niceties.

Judicial officers, in dealing with run of the mill bail applications, take an

overall and broad view of the matter. They always have taken into account

the seriousness of the offence, the probabilities of a conviction, the nature of

the probable sentence, and the ability to put up bail. All these factors go to

the likelihood whether the accused will stand trial, the main consideration in

deciding the bail issue.

[70] In this case the offences were serious. The complainant was told that

she would be killed, she was throttled and she was left for dead. Coetzee ran

away, believing that he had killed her. There was at least a serious attempt to

rape her. The likelihood of a conviction was overwhelming if regard is had

to the fact that Coetzee directly after the event confessed to having

committed a ‘murder’ and that in his warning statement he accepted that he

may have raped the complainant. A lengthy sentence of imprisonment was a

foregone conclusion especially since Coetzee was not a first offender. In

54
S v Dlamini; S v Dladla; S v Joubert; S v Schietekat 1999 (7) BCLR 771, 1999 (4) SA 623 (CC) para 52.
The authorities quoted in support of this statement – S v Ramgobin 1985 (3) SA 587 (N); 1985 (4) SA 130
 43

addition, it was highly likely that his suspended sentence would have been

put into operation. Bail he could not afford. The only real factor in favour of

Coetzee was that he had confessed to the crime and gave himself up to the

police but it must be remembered that he was at the time under the influence

of liquor.

[71] I am satisfied that Mr von Bratt, more probably than not, would have

refused bail in these circumstances. At best for the appellants he might have

granted bail but then he would have fixed bail at a substantial amount which

Coetzee or his family would not have been able to afford. Release Coetzee

with a warning he would not have done. Factual causation has accordingly

been established.

[72] Then to legal causation, namely whether55

‘the wrongful act is linked sufficiently closely or directly to the loss for legal liability to

ensue or whether, as it is said, the loss is too remote. This is basically a juridical problem
56
in the solution of which considerations of policy may play a part.’

The Court below, without adumbrating, held that the plaintiff’s loss was not

too remote. Since appellants do not attack that finding, more need not be

said about the issue.

[73] The appeal is dismissed with costs, including those consequent on the

employment of two counsel.

(N) – unfortunately, do not bear this out.

55
International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) 700.
56
For a detailed discussion of the subject in another context see Thoroughbred Breeders’ Association of
 44

_____________________
L T C HARMS
JUDGE OF APPEAL

AGREE:
STREICHER JA
FARLAM JA
NAVSA JA
LEWIS JA

South Africa v Price Waterhouse 2001 (4) SA 551 (SCA); [2001] 4 All SA 161 (A) para 46 et seq.