CHAPTER 4: SA LEGISLATION SUPPORTING VICTIM’S RIGHTS:
International perspective:
o UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power
South African Constitution of 1996
o Art 12(1)
o Art 7(2)
o Carmichele v Minister of Safety and Security:
Was assaulted by a man awaiting trial on charges of murder and rape
This man had a previous conviction for incident assault and a history of
violent behavior towards women
- He was released by court without the prosecutor opposing bail
He was found acting suspiciously outside Carmichele’s house but was not
re-incarcerated
Following on the attack on her, Carmichele brought a civil claim against
the state
- Although the damages she had suffered were from the assault,
she claimed that the wrongful acts or omission by the police
and prosecutor who were acting within the course and scope of
their employment also made the state liable
In order for her to succeed in this claim she needed to show that these
criminal justice agents were under a legal duty to protect her
- And that they breached this duty and she consequently
suffered damages
Both the High Court and The Supreme Court of Appeal found that SA law
did not place such legal duty on state actors
On Appeal to the Constitutional Court, Carmichele argued to that both
these court were mistaken in not applying the Constitution to the
question whether these agents owed the applicant a legal duty to protect
her
- The Constitutional Court found that positive obligations are
imposed on the police through both the Constitution and the
relevant legislation
1
International perspective:
o UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power
South African Constitution of 1996
o Art 12(1)
o Art 7(2)
o Carmichele v Minister of Safety and Security:
Was assaulted by a man awaiting trial on charges of murder and rape
This man had a previous conviction for incident assault and a history of
violent behavior towards women
- He was released by court without the prosecutor opposing bail
He was found acting suspiciously outside Carmichele’s house but was not
re-incarcerated
Following on the attack on her, Carmichele brought a civil claim against
the state
- Although the damages she had suffered were from the assault,
she claimed that the wrongful acts or omission by the police
and prosecutor who were acting within the course and scope of
their employment also made the state liable
In order for her to succeed in this claim she needed to show that these
criminal justice agents were under a legal duty to protect her
- And that they breached this duty and she consequently
suffered damages
Both the High Court and The Supreme Court of Appeal found that SA law
did not place such legal duty on state actors
On Appeal to the Constitutional Court, Carmichele argued to that both
these court were mistaken in not applying the Constitution to the
question whether these agents owed the applicant a legal duty to protect
her
- The Constitutional Court found that positive obligations are
imposed on the police through both the Constitution and the
relevant legislation
1
