sexual health and human rights in the african region - The ICHRP

[44] The case was first heard in the High Court were the appellant was unsuccessful.
She appealed to the Supreme Court of Appeal where she lost again. The High
Court and the Supreme Court of Appeal had said that the police officer and the
prosecutor respectively did not owe Carmichelle a duty of care. In reaching this
conclusion neither court had considered the provisions of the Constitution. Both
the High Court and the Supreme Court of Appeal had been solely guided by
common law precedents on the duty of care in delict. The precedents had
essentially laid down that the existence of a duty of care under delict was a
matter of law that was dependent on a number of interacting factors, and that,
ultimately, the issue was one of reasonableness with reference to the legal
perceptions or convictions of the community as assessed by the courts. 601 A
balance has to be weighed between the interests of the parties and the conflicting
interests of the community. The Supreme Court of Appeal said that, in this
instance, it was not reasonable to expect the respondents to have taken positive
measures to prevent the harm.
[45] Carmichelle appealed to the Constitutional Court. As part of supporting her
claim, she relied on the Constitution. At the time that the action arose, it was the
Interim Constitution that applied. 602 She invoked the Interim Constitution in
three main areas. Firstly, she argued that the state had a duty to ensure that she
enjoyed her constitutional rights including, the rights to equality, 603 life, 604
human dignity, 605 freedom and security of the person, 606 privacy 607 and freedom
of movement. 608 Secondly, she relied on provisions of the Constitution that
govern the powers and functions of the police service. Section 215 of the Interim
Constitution provided that the powers and functions of the police 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
601 In Carmichelle, the Constitutional Court referred to the following cases the common law precedents:
Minister van Polisie v Ewels 1975 (3) SA 590 (Appellate Division, now Supreme Court of Appeal of South
Africa); Minister of Law and Order v Kadir 1995 (1) SA (Appellate Division, now Supreme Court of Appeal
of South Africa); Knop v Johannesburg City Council 1995 (2) SA 1 (Appellate Division, now Supreme Court
of Appeal of South Africa); Government of the Republic of South Africa v Basdeo and Another 1996 (1) 355
(Appellate Division, now Supreme Court of Appeal of South Africa).
602 Note, however, that the case was decided on the basis that in so far as the constitutional provisions
that were applicable to the appeal, there was no material differences between the Interim Constitution
and the Final Constitution and that the latter would apply as the principle of non-retrospectivity had no
relevance: Carmichelle v Minister of Safety and Security and Another para 15.
603 Section 8 of the Interim Constitution (now section 9 of the Constitution).
604 Section 9 of the Interim Constitution (now section 11 of the Constitution).
605 Section 10 of the Interim Constitution (still section 10 of the Constitution).
606 Section 11 of the Interim Constitution (now section 13 of the Constitution).
607 Section 13 of the Interim Constitution (now section 14 of the Constitution).
608 Section 21 of the Constitution.
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