Carmichele v Minister of Safety and Security and Another 2001 (10) BCLR 995 (CC).pdf - Carmichele v Minister of Safety and Security and Another 2001(10

Carmichele v Minister of Safety and Security and Another 2001 (10) BCLR 995 (CC).pdf

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Carmichele v Minister of Safety and Security and Another 2001 (10) BCLR 995 (CC) Division: Constitutional Court Date: 16/08/2001 Case No: CCT 48/00 Before: A Chaskalson, President; LWH Ackermann, RJ Goldstone, JC Kriegler, TH Madala, Y Mokgoro, S Ngcobo, AL Sachs, ZM Yacoob. Justices; MR Madlanga and CM Somyalo, Acting Justices Flynote Common law development of ­ application and development of the common law in accordance with the spirit, purport and objects of the fundamental rights provisions ­ section 39(2) of the Final Constitution ­ proper development of the common law under section 39(2) ­ requirement discussed generally. Common law development of ­ application and development of the common law in accordance with the spirit, purport and objects of the fundamental rights provisions ­ section 39(2) of the Final Constitution ­ development of the law of delict ­ omissions ­ wrongfulness element of delictual liability for an omission ­ High Court in delictual action having misdirected itself in relation to the constitutional requirements of section 39(2) ­ Constitutional Court upholding appeal, setting aside the grant of absolution made by the High Court, and remitting matter to High Court to continue the trial. Delict liability for ­ omission ­ wrongfulness element of delictual liability for an omission ­ development of the common law under section 39(2) of the Constitution ­ wrongfulness of omissions by police and prosecutors ­ assault by convicted criminal at liberty pending trial ­ claim by victim of assault against relevant Ministers responsible for police and prosecutors ­ High Court having granted absolution from the instance ­ Supreme Court having dismissed appeal and found that absolution from the instance correctly granted by High Court ­ grant of absolution based on finding as to absence of duty of care, there being no special relationship between prosecutor and such a plaintiff so that the breach of such duty would expose the plaintiff to a particular risk of harm different in incidence from the general risk of harm posed to all members of the public ­ grant of absolution based on finding of no unlawfulness as understood in the law of delict ­ Constitutional Court upholding further appeal, setting aside the grant of absolution, and remitting matter to High Court to continue the trial ­ High Court having misdirected itself in relation to the constitutional requirements of section 39(2) . Negligence liability for ­ duty of care ­ when it arises ­ duty of police and prosecuting authorities to victim of assault by convicted criminal at liberty pending trial ­ claim by victim of assault against relevant Ministers responsible for police and prosecutors ­ High Court having granted absolution from the instance ­ Supreme Court having dismissed appeal and found that absolution from the instance correctly granted by High Court ­ grant of absolution based Page 996 of 2001 (10) BCLR 995 (CC) on finding as to absence of duty of care, there being no special relationship between prosecutor and such a plaintiff so
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