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

ACKERMANN AND GOLDSTONE JJConstitution when developing the common law. 23However, both courts assumed thatthe pre-constitutional test for determining the wrongfulness of omissions in delictualactions of this kind should be applied. In our respectful opinion, they overlooked thedemands of section 39(2).[38] In the High Court and the SCA the applicant relied only on the common lawunderstanding of wrongfulness which has been developed by our courts over manyyears. Save in one respect referred to in the applicant’s heads of argument in theSCA, no reliance was placed on the provisions of the IC or the Constitution as havingin any way affected the common law duty to act owed by police officers orprosecutors to members of the public. With regard to the “interests of thecommunity” imposing a legal liability on the authorities, it was submitted by theapplicant’s counsel that it would “encourage the police and prosecuting authorities toact positively to prevent violent attacks on women.” In support of that submissioncounsel referred to authorities in this Court and the SCA devoted to patterns ofdiscrimination against women. 24It does not appear to have been suggested that therewas any obligation on the High Court or the SCA to develop the common law ofdelict in terms of section 39(2) of the Constitution. 2523Amod v Multilateral Motor Vehicle Accidents Fund 1998 (4) SA 753 (CC); 1998 (10) BCLR 1207(CC) at para 22.24Brink v Kitshoff NO 1996 (4) SA 197 (CC); 1996 (6) BCLR 752 (CC); S v Baloyi (Minister of Justiceand Another Intervening) 2000 (2) SA 425 (CC); 2000 (1) BCLR 86 (CC); S v Chapman, above n 10.25Above n 5.21