CASE  NO: 310/98
In the matter between :
ALIX  JEAN  CARMICHELE
Appellant
and
THE MINISTER OF SAFETY AND SECURITY
First Respondent
THE MINISTER OF JUSTICE
Second Respondent
Before:
Van Heerden ACJ et Vivier, Howie, Schutz, Zulman JJA.
Heard:
22  September  2000
Delivered:
2   October 2000

Delictual action for damages.
J U D G M E N T

VIVIER  JA
VIVIER JA:
[1] During the morning of 6 August 1995 the appellant, a 28 year old
woman, was brutally assaulted with a pick handle and knife by one
Coetzee at the home of Ms Julie Gösling at Noetzie, a small secluded
seaside village near Knysna.  The appellant sustained head injuries and
a broken arm in the attack.
[2] Coetzee was a convicted criminal, having been found guilty on 6
September 1994 in the Regional Court at Knysna on charges of house-
breaking and indecent assault for which he had been sentenced to a fine
and suspended periods of imprisonment.  These charges had arisen
from an incident during the night of 3 January 1994 at the home of Ms
Beverley Claassen in Hornlee, Knysna.  At the time of the attack on the
appellant  Coetzee was, in addition, facing a charge of having raped a

young woman, Eurona Terblanche,  at the Hornlee sports grounds on 4
March 1995.  Coetzee had first appeared on this charge in the Knysna
Magistrate’s Court on 6 March 1995 when he had been released on his
own recognizance.   On 15 March 1995 he had been taken into custody
and sent to Valkenberg Hospital for observation.  On 18 April 1995,
upon his return from Valkenberg Hospital, he had appeared in the
Knysna Magistrate’s Court  when he had again been released on his own
recognizance pending a decision by the Attorney-General on whether the
case should be tried in the High Court or the Regional Court.
[3] On the Terblanche charge Coetzee was eventually convicted of
attempted rape on 15 September 1995 and was sentenced to 7 years’
imprisonment.  For the attack on the appellant he was convicted of
attempted murder on 13 December 1995 and sentenced to 10 years’
imprisonment.

[4] Following the attack on her by Coetzee the appellant brought a
delictual action for damages against the two respondents in the Cape
Provincial Division in consequence of  the injuries she had sustained at
the hands of Coetzee.  The appellant’s case, as pleaded, was that the
members of the South African Police as well as the public prosecutors
at Knysna owed her a legal duty to act in order to prevent Coetzee
causing her harm and that they had negligently failed to comply with
such duty.  It was common cause that the police and prosecutors at all
relevant times acted in the course and scope of their employment as
servants of the respective respondents.
[5] The trial came before Chetty J who was asked to decide only the
issue of liability and to permit the question of the quantum of damages
to stand over.  At the conclusion of the appellant’s case the learned
Judge  held that there was no evidence upon which a court, applying its

mind reasonably to such evidence, could find for the plaintiff that the
said duty had existed and that the police and public prosecutors at
Knysna had acted wrongfully.   He accordingly granted an order of
absolution from the instance with costs.  With the leave of the Court a
quo the appellant appeals to this Court.  In the circumstances we are not
concerned with the question whether negligence was proved or the
further question whether any possible negligence could ever have been
causally related to the appellant’s loss.
[6] The legal duty contended for was one owed to the appellant to act
positively in order to ensure that Coetzee was remanded in custody
pending his trial on the rape charge and to ensure that he was re-arrested
when complaints about his behaviour were made to the police and
prosecuting authorities on 20 June 1995 and 2 August 1995. The duty
to secure his re-arrest was limited to the prosecutors.

[7] The appropriate test for determining the wrongfulness of omissions
in delictual actions for damages in our law has been settled in a number
of decisions of this Court such as  Minister van Polisie v Ewels 1975(3)
SA 590 (A) at 597 A-C; Minister of Law and Order v Kadir 1995(1)
SA 303 (A) at 317 C-318 I; Knop v Johannesburg City Council 1995(2)
SA 1 (A) at 27 G-I and Government of the Republic of South Africa v
Basdeo and Another 1996(1) 355 (A) at 367 E-H.    The existence of
the legal duty to avoid or prevent loss is a conclusion of law depending
upon a consideration of all the circumstances of each particular case and
on the interplay of many factors which have to be considered. The issue,
in essence,  is one of reasonableness, determined with reference to the
legal perceptions of the community as assessed by the Court.
In Minister of Law and Order v Kadir, supra,  Hefer JA, stated
the nature of the enquiry thus at 318 E-H :

“As the judgments in the cases referred to earlier
demonstrate, conclusions as to the existence of a
legal duty in cases for which there is no precedent
entail policy decisions and value judgments which
‘shape and, at times, refashion the common law [and]
must reflect the wishes, often unspoken, and the
perceptions, often dimly discerned, of the people’
(per M M Corbett in a lecture reported sub nom
‘Aspects of the Role of Policy in the Evolution of
the Common Law’ in (1987) SALJ 52 at 67).   What
is in effect required is that, not merely the interests of
the parties inter se, but also the conflicting interests
of the community, be carefully weighed and that a
balance be struck in accordance with what the court
conceives to be society’s notions of what justice
demands.”
Hefer JA also stressed the difference between morally reprehensible and
legally actionable omissions and warned that a legal duty is not

determined by the mere recognition of social attitudes and public and
legal policy (at 320 A-B).   The question must always be whether the
defendant ought reasonably and practically to have prevented harm to the
plaintiff:  in other words, is it reasonable to expect of the defendant to
have taken positive measures to prevent the harm (Prof J C van der Walt
in Lawsa, First Reissue, Vol 8, Part 1 para 56).
[8] With this approach in mind I turn to deal more fully with the facts
of the present case.
When Coetzee first appeared in the Magistrate’s Court on 6 March
1995 in connection with the alleged rape of Eurona Terblanche, the
investigating officer, Sergeant Kleyn, recommended that he be released
on his own recognizance.   A note in the file to the effect that Coetzee
had a previous conviction for rape arising from the events at  Claassen’s
house (this was incorrect as his previous conviction was for indecent

assault) was not brought to the attention of the magistrate,  Mr K J Von
Bratt, who ordered that Coetzee be released on his own recognizance.
Von Bratt’s evidence was to the effect that in the period between the
coming into force of the Constitution of the Republic of South Africa
Act 200 of 1993 (“the interim Constitution”) on 27 April 1994 and the
commencement of the Criminal Procedure Second Amendment Act 75
of 1995 on 21 September 1995 (which extensively revised the bail
provisions of the Criminal Procedure Act 51 of 1977), awaiting trial
accused were allowed out on bail or own recognizance far more readily
than was previously the case.   He said that at the relevant time the State
had to produce substantial grounds before an awaiting trial accused
would be remanded in custody.  At the relevant time sec 25 (2)(d) of the
interim Constitution provided that every person arrested for the alleged
commission of an offence had, in addition to  rights as a detained

person, the right to be released with or without bail, unless the interests
of justice required otherwise.  Sec 35 (1)(f) of the present Constitution
of the Republic of South Africa Act 108 of 1996 provides that everyone
who is arrested for allegedly committing an offence has the right to be
released from detention if the interests of justice permit, subject to
reasonable conditions.   Von Bratt was not prepared to say that, if
properly informed, he would have remanded Coetzee in custody.
[9] After his release from custody on 6 March 1995 Coetzee returned
to Noetzie, where he had been living with his mother, Ms Annie Coetzee,
since the end of 1994.  Annie Coetzee was employed by Gösling  in her
business at Knysna and also did domestic work for her in her house at
Noetzie where Gösling lived permanently.  Gösling had arranged with the
owner of one of the few other houses at Noetzie that Annie Coetzee
could occupy the house and look after it.

[10] A few days after Coetzee’s release from custody Eurona
Terblanche's mother approached Gösling and told her about the attack
on her daughter and about Coetzee’s  previous conviction for indecent
assault.  As a result Gösling spoke to Captain Lawrence Oliver of the
Knysna police and asked him to see to it that Coetzee was kept in
custody pending his trial.  Captain Oliver told Gösling to discuss the
matter with the senior public prosecutrix, Dian Louw, which she did.
Gösling testified that she told Louw that Coetzee would hurt her or one
of her friends as she feared that he would repeat his previous crime.
Louw told her that there was nothing she could do until he committed
another offence.
[11] On 13 March 1995 Coetzee attempted to commit suicide.  Annie
Coetzee's evidence was that Coetzee had sexually abused girls in the
family from an early age and that she wanted him to be sent to an

institution for treatment as she was afraid that he would commit another
sexual offence.  With the assistance of a family member, Sergeant
Grootboom of the Knysna Police, she took Coetzee to see Louw  the
day after the attempted suicide.  The latter’s notes of what Coetzee told
her were produced at the trial and include the following :
“Vlgs besk. kom probleem aan sedert hy 10 jaar oud
is.  Neigings bv. kry ereksies en om ’n vrou te sien
of foto’s.
My niggie gemolesteer in die aand as sy slaap
haar bevoel
ma het my uitgevind.
Dr toe geneem
Dr my gewaarsku 13/14 jaar.
Masturbeer baie
onsedelike aanrandings - by ’n huis ingegaan en die meisie
onsedelik aangerand - bevoel + panty afgetrek.
Van 1½ jaar opgeskort 1994
Verkragting.
......
Sien meisies moet my keer hardloop huis toe masturbeer.”
In view of what Coetzee told Louw he was rearrested, brought

before court on 15 March 1995 and was referred to Valkenberg Hospital
for observation.   The referral documents prepared by Louw included
her abovementioned notes as well as details of the sexual attack on
Eurona Terblanche.  Copies of the referral documents were sent to the
Attorney-General.
[12] On 18 April 1995, upon his return from Valkenberg Hospital,
Coetzee again appeared in the Knysna Magistrate’s Court, this time
before Mr L Goosen.  The prosecutor  handed in a report by Dr A
Jedaar, a specialist psychiatrist at Valkenberg Hospital, to the effect that
Coetzee had criminal capacity at the time of the attack on Eurona
Terblanche and that he was fit to stand trial.   The magistrate accepted
the findings in the report.  Coetzee was thereupon charged with rape and
pleaded not guilty.   The case was postponed to 2 May 1995 awaiting
the Attorney-General’s decision as to whether Coetzee should be tried

in the High Court.  Coetzee was once again released on his own
recognizance.   His release was not opposed by the prosecutor who
again did not inform the magistrate of the previous conviction.
Goosen did not testify and there is no evidence to suggest that had he
been fully informed he would have ordered that Coetzee be detained in
custody pending his trial.    Nothing appears from the record about the
proceedings on 2 May 1995 when Coetzee was again released on his
own recognizance.   The Attorney-General decided that Coetzee should
be tried before a Regional Court and, again, did not suggest his
detention awaiting trial.
[13] The evidence for the appellant was that in the period between 18
April l995 and the attack on the appellant on 6 August 1995 Gösling, the
appellant and Annie Coetzee on various occasions all requested the
police and/or Louw  to have Coetzee re-arrested and to ensure that he

was detained in custody pending his trial. Gösling testified that one
morning towards the end of June 1995 while she was at work  she
received a telephone call from the appellant who had stayed overnight at
her home in Noetzie.  The appellant informed her that she  had seen
Coetzee prowling around the house apparently trying to get in through
the window of Gösling’s bedroom.   Gösling testified that she went into
the Knysna charge office and spoke to Captain Oliver who said that the
police could do nothing unless Coetzee committed a crime.  He again
told her to speak to Louw,  who told her the same.  Neither the
appellant nor Gösling laid any charge against Coetzee resulting from this
incident.   In fact, according to Gösling, she never told the police or the
prosecutor that Coetzee had trespassed.   This was probably because
she was aware of the fact that he was doing chores for his mother at
Gösling’s  home at Noetzie and was therefore allowed on to the

property.  It is clear from her evidence that her main reason for talking
to the police and Louw was that Coetzee had been released in the first
place. On 2 August 1995, i e only four days before the attack, Gösling
again raised her fear of Coetzee with Louw who repeated that there was
nothing she could do.
[14] In view of the fact that Coetzee was taken into custody after his
first release on 6 March 1995 and that he was then again released on 18
April 1995 the court proceedings on 6 March 1995 are irrelevant and
need not be considered.  The essential enquiry is, first, whether the
alleged legal duty was owed by the police and prosecutors with regard
to Coetzee’s release on 18 April 1995 and, secondly, whether the
prosecutors owed the appellant a legal duty to secure his re-arrest
following the complaints on 20 June 1995 and 2 August 1995.
[15] With regard to Coetzee’s release on 18 April 1995 it was

obviously the magistrate’s decision whether to release him or not, so that
the legal duty contended for must be confined to a duty, on the part of
the police, to provide the prosecutor with full information and a duty, on
the part of the prosecutor, to oppose bail and to give the court full
information relevant to Coetzee being remanded in custody or released.
[16] On 18 April l995 the prosecutor was in possession of all the
information relevant to Coetzee’s detention or release.  This consisted
of Coetzee’s one previous conviction for housebreaking and indecent
assault (which appeared from the referral documents), the nature of the
crime he was then charged with, the referral documents and Dr Jedaan’s
psychiatric report.    There was accordingly nothing further required of
the police and consequently no legal duty was owed by them relative to
Coetzee’s release on 18 April 1995.   I have  pointed out already that
it was not alleged that the police owed any legal duty relative to

Coetzee’s possible re-arrest thereafter.
[17] That leaves the question whether the prosecutors at Knysna owed
a legal duty to the appellant to oppose Coetzee’s release on 18 April
1995 and to secure his re-arrest.    I shall assume in favour of the
appellant that the State may be vicariously liable for an omission by a
prosecutor in exercising a discretion.
There is obviously no absolute duty resting on a prosecutor to
oppose bail in all cases.   The prosecutor has a public duty to oppose
bail in appropriate cases but a breach of this duty does not necessarily
constitute a legally actionable omission at the instance  of any individual
member of the public.    Whether a legal duty is owed in that situation
to any individual member of the public depends on what is reasonable,
having regard to all the facts and circumstances of the particular case
and the interplay of the factors mentioned by the authorities to which I

have referred.  It also depends on whether the claimant stands in a
special relationship to the defendant such as distinguishes the claimant
from any other member of the public.
[18] In the present case the facts are that Coetzee was facing a charge
of having raped and seriously injured a young woman.  He had only one
previous conviction for indecent assault (not involving physical harm)
for which he had been given a suspended sentence.  He had been sent
for observation and the psychiatric report did not declare  him to be any
danger to society and made no recommendation that Coetzee be kept in
custody, despite Louw’s notes in the referral documents, which reflected
the seriousness of the rape and Coetzee’s sexual deviation.  Copies of
the referral documents had been sent to the Attorney-General, who had
not seen fit to instruct the prosecutor to oppose bail.   At the time a
recently issued circular from the Attorney-General instructed prosecutors

in his area to assume for the time being that awaiting trial accused had
the right to be released and that if the state wished to oppose such
release it bore the  onus of proving that it would be contrary to the
interests of justice.  Consequently the attitude of the magistrates was to
grant bail despite the seriousness of the offence and despite the
conflicting interests of the community  that women should  be protected
from sexual assault.
[19] In all these circumstances, and particularly the psychiatric report,
it cannot be said, in my view, that it was unreasonable for the prosecutor
not to have opposed the release of Coetzee on his own recognizance.
For this reason the prosecutor did not owe the appellant a legal duty
either to oppose bail or to ensure his subsequent re-arrest.   It is,
moreover, highly questionable whether a later charge of trespass would
have resulted in Coetzee’s incarceration in any event.

[20] There is another reason why the circumstances of the present case
are not capable of establishing the legal duty contended for.   This is
that there was no special relationship shown to exist between the
prosecutors at Knysna and the appellant.  That there must be some
relationship between the person who owes the legal duty and the person
to whom the duty is owed, the breach of which would expose the latter
to a particular risk of harm in consequence of an omission, which risk
is different in its incidence from the general risk of harm to all members
of the public,  is well-established in English law and is also in
accordance with our law.  See Hill v Chief Constable of West Yorkshire
[1988] 2 ALL ER 238 (HL); Alexandrou v Oxford [1993] 4 ALL ER
328 (CA); Osman and Another v Ferguson and Another [1993] 4 All
ER 344 (CA); Kent v Griffiths and Others [2000] 2 WLR 1158 (CA)
LAWSA, first reissue, Vol 8, para 56.

[21] Counsel for the appellant did not challenge the requirement of a
special relationship.  Indeed, he submitted that a special relationship
existed in view of the fact that the appellant was attacked at Noetzie
where, because of its isolation, women were at greater risk.  If women
at Noetzie were more at risk than, say women in Knysna or elsewhere,
this by itself is not sufficient to establish the special relationship required
for imposing a legal duty.    Coetzee was released on 18 April 1995 and
the attack took place some three and a half  months later on 6 August
1995, after he had been at large in the neighbourhood for most of that
time and there was only the prowling incident to speak of.    The assault
was clearly committed in the further pursuance of Coetzee's general
criminal career on one of a number of the female general public who
were at risk from his criminal conduct.   As was pointed out by Lord
Keith in the Hill case (at 243 d-e), where the class of potential victims

of a particular criminal is a large one the precise size of it cannot in
principle affect the issue.  All householders are potential victims of a
habitual burglar and all females those of a habitual rapist.  In the absence
of evidence that the appellant was at any special distinctive risk the fact
that the attack occurred at a secluded village where she was a visitor is
insufficient to establish the special relationship contended for.  The mere
fact that complaints and requests for Coetzee’s re-arrest were made to
the prosecutors is also insufficient to establish a special relationship (cf
Alexandrou v Oxford, supra, at 338 g-j).
[22] Counsel for the appellant finally submitted that the Court a quo
erred in granting absolution from the instance at the close of the
appellant's case.  As was emphasised by Harms JA in the as yet
unreported judgment of this Court in  Gordon Lloyd Page and
Associates v Francesco Rivera and Tiber Projects (Pty) Ltd (case no

384/98 in which judgment was delivered on 31 August 2000),  the
inference relied upon by the plaintiff at the close of his or her case must
be a reasonable one, not the only reasonable one, and the test  for
absolution at that stage is not what another reasonable person or court
might think but what the trial court’s  own judgment is (at p 2-4 of the
judgment).
In my view there was in the present case insufficient evidence
upon which the Court a quo could reasonably conclude that the duty
contended for existed.   The Court a quo accordingly correctly granted
absolution from the instance.
The appeal is dismissed with costs, including the costs of
two counsel.
W.  VIVIER JA
Van Heerden ACJ)
Howie     JA)
Schutz     JA)
Zulman    JA)     Concur.