Rape victim sues Ministers for failure to protect rights

By M.S. Prabhakara

CAPE TOWN, AUG. 17. In a landmark ruling, South Africa's Constitutional Court has directed the Cape High Court to hear again the case a victim of rape had filed against two Ministers, the Minister of Justice and the Minister of Safety and Security, for failing their duties to protect her constitutional right to ``dignity, freedom and security of the person''.

Her complaint on these grounds had earlier been rejected by the High Court. The appeal against that judgment too had been dismissed by the Supreme Court of Appeal.

The grim and painful background to the case, and the path it has taken over the last six years since the rape took place in August 1995, throws interesting light on the state of criminal justice.

Ms. Alix Carmichele, resident of Knysna in Western Cape, was attacked and raped while she was on her way to a friend's beach house. Her assailant, Francois Coetzee, who had already been convicted on a charge of sexual assault was - at the time he attacked Ms. Carmichele - awaiting trial for assault and rape in another case. He had however been released without bail. Indeed, Ms. Carmichele and a lawyer friend of hers had been discussing days before she herself became a victim this very negligence of the police and the prosecuting authorities (the release even without bail of a man convicted of sexual assault and awaiting trial for rape). An earlier incident of extreme violence and rape had taken place in the area recently.

The attack on Ms. Carmichele, when it happened two weeks later, was brutal. She was brought down by a pickaxe handle, repeatedly hit and stabbed. In due course, her assailant was convicted of attempted murder, as well as on the earlier charge of rape and sentenced to 10 years in prison.

However, that did not help the victim; nor did the conviction answer the question how a proven sexual offender, a man with a conviction for sexual assault and facing a charge of rape had been allowed to move around freely, and not kept in custody.

Thus Ms. Carmichele's application to the Cape High Court charging the police and the prosecutor with failing in their duties by releasing Coetzee from custody. Crucially, they did not place all the facts at their disposal relevant to the refusal or granting of bail before the trial court.

The authorities had failed to discharge their obligation to protect vulnerable members of the public by failing to ensure that Coetzee was remanded in custody pending his trial. They had thus failed in their duties to protect her constitutionally guaranteed rights to ``life, equality, dignity, freedom and security of the person and privacy''. This failure to protect her had in the circumstances been unlawful and negligent. She also sought relief from the Government, in the person of the Minister of Justice and the Minister of Safety and Security, for the damages resulting from the attack she was subjected to by Coetzee.

The Cape High Court dismissed her petition. It held that neither the police nor the prosecuting authorities had wrongfully failed to fulfil a legal duty. Her appeal against the High Court's ruling was also dismissed by the Supreme Court of Appeal on the ground that the police and the prosecuting authorities had, in the words of the Media Summary of her application provided by the Constitutional Court, ``no legal duty of care towards the applicant and that in the absence of a special relationship between them and the applicant, they could not be held liable for damages to her''.

The Constitutional Court in its ruling has however held that the applicant may have a case against the authorities, since, despite the proven history of sexual violence of the perpetrator, they had allowed him to be released without bail. Put simply, by releasing the person who was awaiting trial on a rape charge without bail, the state made itself liable for the crime it should and perhaps could have prevented.

The Cape High Court which has been directed to hear the case again has to decide, in the light of the Constitutional Court's ruling, whether Ms. Carmichele has made out ``a case in law'', going even beyond the constitutionally entrenched guarantees, for the state and the Ministers to answer.

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Section  : International
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