References: (2001) 12 BHRC 60, [2001] ZACC 22, 2001 (4) SA 938 (CC), 2001 (10) BCLR 995 (CC)
Links: Saflii
Coram: Ackermann, Goldstone JJ
Constitutional Court of South Africa – The applicant had been assaulted by a man awaiting trial for attempted rape. Both police and prosecutor had recommended bail despite a history of sexual violence. She applicant sued the ministers responsible for the police and prosecution service, saying that they had failed to ensure that the magistrate was properly informed about the risk he posed to women in the vicinity of his home, including the applicant. Her claim was dismissed by the High Court and its decision was upheld by the Supreme Court of Appeal, but she succeeded on appeal to the Constitutional Court, relying on a provision in section 39(2) of the constitution which required the courts when developing the common law to ‘promote the spirit, purport and objects of the Bill of Rights’. The Constitutional Court decided that it would not be appropriate for itself to determine whether the law of delict required to be developed so as to afford a right to the applicant to claim damages if the police or prosecutor were negligent. It said that it was by no means clear how the constitutional obligations on the state should translate into private law duties towards individuals, and that the court would be at a grave disadvantage in deciding the issue without a fully reasoned judgment of the High Court or Court of Appeal. It set aside the decisions of the lower courts and remitted the matter to the High Court.
This case is cited by:
- Cited – Michael and Others -v- The Chief Constable of South Wales Police and Another SC (Bailii, [2015] UKSC 2, Bailii Summary, [2015] 2 WLR 343, [2015] Med LR 171, [2015] 2 All ER 635, [2015] HRLR 8, UKSC 2013/0043, SC, SC Summary, SC Videoa Summary)
The claimants asserted negligence in the defendant in failing to provide an adequate response to an emergency call, leading, they said to the death of their daughter at the hands of her violent partner. They claimed also under the 1998 Act. The . .
(This list may be incomplete)
Last Update: 20-Dec-15 Ref: 556811
