Impact of the Bill of Rights Flashcards
What has been the impact of the Bill of Rights on the law of delict?
Constitutional rights (CRs) and values have the potential to influence the common law of delict in many different ways:
1) the scope of delictual defences (i.e. right to life and defence of property) [S v Van Wyk]
2) who can sue under the dependants’ action (same-sex life partners) [Du Plessis v RAF]
3) the application of the scope and employment requirement in state vicarious liability [K v Minister]
4) liability of state defendants for negligent omissions [Carmichele]
Provide a case summary of Carmichele v Minister of Safety and Security
The applicant had been attacked by a man who was awaiting trial. It was alleged that the Minister had failed in their legal duty to protect her.
This case concerns the constitutional obligation on the courts to develop the common law to promote the spirit, purport and objects of the Bill of Rights. The specific issue was whether the High Court and the Supreme Court of Appeal ought to have broadened the concept of “wrongfulness” in the law of delict in the light of the State’s constitutional duty to safeguard the rights of women.
(Ackermann J and Goldstone J) “It needs to be stressed that the obligation of courts to develop the common law, in the context of the section 39(2) objectives, is not purely discretionary. On the contrary, it is implicit in section 39(2) read with section 173 that where the common law as it stands is deficient in promoting the section 39(2) objectives, the courts are under a general obligation to develop it appropriately.” The case was sent back to the High Court for evidence to be led.
Provide a case summary of Minister of Safety and Security v Van Duivenboden
Brooks shot Dawn, but she managed to escape. He shot Nicole, who died. Dawn was found and shot to death. He shot the respondent in the ankle and shoulder. The respondent sought damages from the state.
Were the police negligent in failing to deprive Brooks of his firearms?
People knew about Brooks’ firearms. They knew that he had a pattern of abusing his wife, Dawn. The police were in possession of the information that would enable them to take reasonable steps to prevent the harm from occurring. Therefore, the police were negligent and were liable to pay for the respondent’s damages. If the state breached a constitutional right and if there is no alternative remedy, then the state’s conduct should be regarded as wrongful (i.e. there should be a legal duty) unless the costs outweigh the benefits.
What are the four instances in which the courts ought to use the constitution to develop the common law?
Courts are obliged to develop the common law. They have done so by developing common law principles through the doctrine of precedent. There are four situations in which this obligations plays out:
1) when a common-law principle conflicts with the BoR
2) when the principle fails to adequately reflect the Constitution’s underlying values
3) when a principle that complies with the Constitution demands scrutiny
4) when a principle needs to be developed for some other reason unrelated to the Constitution
For the first two, a rule must be changed. However, a limitations analysis must first take place to determine whether an infringement on a right is reasonable in the circumstances. For the third, the Constitution must shape the application of the rule. For the fourth, there is no trigger requiring the common law to be developed. It may be developed at any time, to suit commercial practice, for example. This is not retroactive action. It is merely a re-channelling of the the application of the law.
Therefore, application of the BoR to develop the common law is conceptually different to the doctrine of precedent. So, matters invoking the BoR can be heard by the SCA. Like in Germany, the CC ought only to hear the most serious of matters. The legislature should take responsibility for changing the law, not the judiciary.
