A Duty to Protect Women
Carmichele v Minister of Safety and Security and Minister of Justice (2001)
What is the state’s duty in protecting the bodily integrity, dignity, and freedom of women?
Background
On the morning of 6 August 1995, Alix Jean Carmichele was viciously attacked by Francois Coetzee with a pick handle. Prior to assaulting Carmichele, Coetzee had been arrested for the attempted rape and murder of a 17-year-old schoolgirl.
Carmichele sued the Minister of Safety and Security claiming that the police and prosecutor had negligently failed to comply with a legal duty they owed her by allowing Coetzee to be released, whilst knowing his history of violent crimes.
Coetzee had been arrested and sent for observation at an institution. The report by the institution confirmed that Coetzee knew the difference between right and wrong and could be put on trial. A group of women protested his release from jail claiming he could not control himself.
Upon Coetzee’s temporary release from jail, the police were contacted by concerned citizens on multiple occasions, fearing that he would attack again. It was during his release that Coetzee violently attacked Carmichele.
Path to the Constitutional Court
Shortly after the attack, Carmichele instituted proceedings in the Cape of Good Hope High Court for damages against the Minister of Safety and Security, and the Minister of Justice and Constitutional Development. She claimed that members of the police service and public prosecutors had negligently failed to comply with a legal duty they owed her to take steps to prevent Coetzee from causing her harm.
Her claim was dismissed on the grounds that they had no legal responsibility to protect her. On appeal to the Supreme Court, her appeal was also dismissed. Carmichele appealed to the Constitutional Court.
Some of the Arguments
Alix Carmichele
Carmichele contended that the police officer and prosecutor should have prevented Coetzee from being released from jail on bail. Her legal team argued that given the prevalence of gender-based violence in South Africa, there should have been a special concern by the state – as a constitutional obligation – not to do anything that could further the possibility of violence.
Minister of Safety and Security
The contended that until then, the law had said that a mistake by a judicial officer that leads to bad consequences as in Carmichele’s case, can’t be the basis for seeking damages in court. The Minister contended that until that point the state did not have a ‘duty of care’ to someone in Carmichele’s position.
What did the Constitutional Court decide?
The Court found that the police have positive obligations to protect the fundamental rights and freedoms contained in the Bill of Rights. The police, therefore, had to reasonably protect women from sexual violence, and their failure to do so would result in liability.
The Court also emphasised South Africa’s duty under international law to prohibit all gender-based discrimination. The Court noted that the police are one of the primary agencies of the state responsible for the protection of the public in general, and women in particular, against the violation of their fundamental rights by perpetrators of violent crime. The Court found that the police, therefore, had a duty to protect Carmichele.
Few things can be more important to women than freedom from the threat of sexual violence … It is the single greatest threat to the self-determination of South African women.
Justice Richard Goldstone and Justice Laurie Ackerman
from the Carmichele Judgment, 16 August 2001
Impact and Significance
The decision set an important precedent with its recognition that sexual violence is not a private matter and that public officials have a duty to protect women. Following the judgment of the Constitutional Court, the High Court ordered the Minister of Safety and Security to pay Carmichele R177 000 and her legal costs. The perpetrator, Coetzee was released from prison on parole in October 2014, but was arrested after violating the conditions of his parole in May 2015.
The joint judgment between Justices Goldstone and Ackerman was very carefully crafted. What was significant was the weight given to the issue of violence in our society especially against women. Having two male judges steeped in the law giving this judgment showed the collegial character of the Court. It meant that the Court is taking gender rights seriously.
Justice Albie Sachs
2019
We hope this judgment will have a knock-on effect, especially in the field of domestic violence. Domestic violence laws place many duties on the police and prosecutors but are not enforced.
Michelle O’Sullivan,
then head of the Women’s Legal Centre
It highlighted that the Constitution is there to empower people who had been victimised.
Lisa Vetten
then head of the Gender Unit at the Centre for the Study of Violence and Reconciliation
