CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT ... - saflii

ACKERMANN AND GOLDSTONE JJofficer (Klein) or the prosecutors (Louw and Olivier) at times when they were actingin the course and scope of their employment with the State. In order to succeed, theapplicant would have to establish at the trial that:(a)Klein or the prosecutors respectively owed a legal duty to the applicantto protect her;(b)Klein or the prosecutors respectively acted in breach of such a duty anddid so negligently;(c)there was a causal connection between such negligent breach of the dutyand the damage suffered by the applicant.In deciding whether to grant the respondents’ application for absolution from theinstance the trial court and the SCA dealt with issue (a) only. Having found againstthe applicant in respect of that issue, it became unnecessary to consider whether therewas sufficient evidence on the remaining two issues to place the respondents on theirdefence.The Test for an Order of Absolution from the Instance[26] Both the trial judge and SCA applied the appropriate test for the grant ofabsolution from the instance at the close of the plaintiff’s case, viz. whether a court,applying its mind reasonably to the evidence, could or might (not should or ought to)find that the police or prosecutors at Knysna owed a legal duty to the applicant to13