News Item

Date 14th May 2002

LANDMARK JUDGMENT IN CARMICHELE CASE

Article from Cape Times 14th May.

Ruling gives new hope to crime victims

LINDIZ VAN ZILLA

Only six people were in Court 22 yesterday to hear Justice Dayalin Chetty deliver a landmark judgment signalling the nearing of the end of Alix Carmichele's seven-year quest for justice -and a ray of light for victims of crime.

In his judgment, the Cape High Court judge ruled that the state was liable for damages suffered by Carmichele who was attacked at a beach house in Knysna by Francois Coetzee, a violent criminal with a history of sexual assault.

Carmichele had sued the ministers of safety and security and of justice for negligence for failing to lock up Coetzee pending a rape trial.

Justice Chetty yesterday found the ministries "are jointly and severally liable for the damage she (Carmichele) suffered as a result of the attack committed by Coetzee".

He said the police and state prosecutors "owed Carmichele a legal duty to protect her against the risk of sexual violence perpetrated by Coetzee and the negligent failure to do so was unlawful". Reacting to the judgment, Carmichele said: "I feel great…absolutely Fantastic."

Yesterday's judgment has opened the door for some victims of crime to launch civil claims against the state in cases where the state failed in its duty to sufficiently protect its citizens against criminals and other dangerous persons.

In court yesterday to hear the judgment was Pedro De-Lima, a 34- Year-old paraplegic who is suing the minister of safety and security for R2.63 million.

De-Lima claims that the ministry was negligent in issuing a firearm licence to the man who shot him, even though the man had a history of mental illness and had been out on bail on a murder charge.

Carmichele's case has already been through the legal mill-the Cape High Court initially absolved the ministries, a ruling that was upheld by the Appeal Court. But, last year, the Constitutional Court ruled that the High Court must hear the case and determine whether the state was at fault.

On August 6, 1995, Coetzee used a pickaxe handle and a knife to attack Carmichele at a beach house near Knysna.

The 34-year-old Carmichele suffered a fractured skull, broken arm and a deep knife-wound to her chest during the attack. Coetzee, 23 at the time, had previous convictions for assault, housebreaking and indecent assault and was awaiting trial on a charge of raping a 16-year-old girl.

Carmichele argued that failure by police and the public prosecutors to oppose bail in the rape matter constituted a breach of her constitutional right to dignity and security of person. She had sought damages of R177 000.

Carmichele's lawyer, Perino Pama, told the Cape Times: "We are extremely pleased, it has been a seven-year battle, but we have been vindicated."

Parna said further medicolegal reports would have to be drawn up to determine whether the extent of damages would have to be amended from the original estimate.

He said he did not envisage a flood of litigation because the Carmichele case was unique.

But the judgment did present "a light in the dark" for people who otherwise would have had no recourse.

Michael Donen, the lawyer representing De-Lima, believed the case could open a floodgate of litigation - but cautioned that each individual case would have to be weighed on its merits.

"It will depend on whether or not the police did their job properly," he said. "If there is no fault on the part of the police, there can be no liability."

Donen also represents Ian Hamilton, who is suing the ministry for safety and security for R18.93m for its alleged negligence in issuing a firearm licence to the woman who shot him, despite her well-documented psychotic behaviour.

Hamilton, 31, was left a quadriplegic after he was shot after an argument with the woman over a parking bay.

Ian Hamilton's legal costs are underwritten by Legal Protection Services.