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

internal security of the Republic. 609 Her argument was that the police had failed
to discharge this constitutional duty. Finally, the appellant relied on section 35(3)
of the Interim Constitution (now section 39(2) of the Constitution) which requires
courts to develop common law, including the law of delict, with due regard to
the ‘spirit purport and objects of the Bill of Rights’. Her argument was that the
court should depart from the common law precedents where the precedents
were not consonant with the Constitution or were insufficient to vindicate her
constitutional rights.
[46] The Court unanimously held that under section 39(2) of the Constitution, courts
have a duty to develop common law, including the law of delict, and that where
the law deviates from the Constitution courts must develop common law so as to
remedy the deviation. There is no reason in principle why a prosecutor who has
reliable information, for example, about an accused person who 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. 610 However,
liability in this case will, ultimately, depend on the facts of the case to be
determined by the trial court. The matter would be remitted to the High Court
for that court to continue with the trial and determine whether in the light of the
duty of the court under section 39(2) of the Constitution, and the facts of the case
as found by the trial court, there was a positive duty on the respondents to take
reasonable steps to prevent harm to the appellant.
[47] The Court emphasized that the section 39(2) of the Constitution imposes a duty
and should not be understood as conferring a discretionary power. However, in
exercising their duty, courts have to bear in mind that on account of the
constitutional separation of powers in a democracy, it is the legislature and not
the courts that should be the ‘major engine of law reform’. 611
[48] The Court said that the import of section 39(2) was to be understood in the
context of a constitution that is not merely a formal document for regulating
power, but instead embodies an ‘objective normative value system’. 612 In this
regard, the Court drew a parallel with the German Federal Constitution to
highlight the fact that the Constitution constitutes a radical break with the past
and that its values are pervasive as to permeate all areas of law, including the
law of delict that has been historically conceived as private law under the South
African legal system.
609 The powers and functions of the police service are now contained in section 205 of the Constitution
and the Police Act of 1995.
610 Carmichelle v Minister of Safety and Security and Another para 74.
611 Ibid para 36
612 Ibid para 54.
175