class notes: 03.03.2017
The
state's duty to protect citizens from violent crime
The Constitutional Court and the Supreme
Court of Appeal in a number of civil cases dealing
with delictual
liability ruled that there rests a duty on the state, acting through
the police, to protect citizens against violent crime. The watershed
case was Carmichele v
Minister of Safety and Security 2001 (4) SA 938 (CC). In that
case the
Constitutional Court recognised the existence of such a legal duty on the
police in
terms of the court's powers to develop the common law according to the
values,
norms and rights of citizens enshrined in the Constitution of the Republic
of South
Africa, 1996 (``the Constitution'').
The background to this case was
briefly that
C was brutally assaulted by a man (X) who had several previous
convictions for
crimes of violence. This occurred while X was out on bail,
awaiting trial
on charges of rape and attempted murder in respect of another
victim, E.
C subsequently claimed damages from the state on the basis that the
police and
prosecuting authorities had negligently failed to protect her against being assaulted by a dangerous criminal.
In Minister of Safety and Security v Van Duivenboden 2002
(6) SA 431 (SCA), the
Supreme Court
of Appeal recognised the existence of a legal duty resting on the
state to
protect citizens against violent crimes in the following circumstances: The
police had
been aware of the fact that X had threatened members of his family
that he
would kill them. However, the police failed to take the necessary steps to
ensure that
X be deprived of a licence to possess a firearm. X subsequently shot
and injured
Y, who instituted a civil claim for damages against the state on the
basis of a
negligent failure to act positively to protect her.
The Supreme Court (at
pars 12
and 20) held that while private citizens might ``mind their own business
''and ``remain
passive when the constitutional rights of other citizens are under
threat''
the state has a positive duty to act in protection of fundamental human
rights.
The majority of the court (at par 20) founded
this duty on the concept of
``accountability''
of government in terms of the provisions of the Constitution, whereas one
of the judges, Marais JA, founded the duty on the common-law
principles of
liability for omissions (namely, the legal convictions of the
community).
You will note that these are civil cases
but they are important to take note of for the purposes of criminal
liability!!!!
Question
A municipal by-law stipulates that no
home-owner may dump his garden refuse in public parks. The conduct prohibited
is defined as a crime and is punishable with a maximum fine of R2 000. X is
charged with
this offence on the grounds that he dumped his garden refuse in a public park.
X relies
on the
defence of impossibility.
He alleges that because there are no
designated places in the vicinity
where he
can dump his refuse, it was impossible for him not to commit this offence.
Discuss the
merits of
his defence.
X's defence has no
merit. The defence
of impossibility cannot be raised in cases where certain
conduct
is prohibited by law. The defence can only be pleaded
if the
conduct which forms the basis of the charge consists in an
omission. In other words, if the provision stipulates that ``You
may not
...'', the defence of
impossibility cannot
be raised.
Conversely, if it
stipulates that ``You
must ...''
the defence
may be raised.
Students often
have difficulty in understanding this. The basis of the charge against X was
not a
failure(omission) to
do something. A positive act (commissio) by X formed the basis of the charge.
Also read
the leading
case in this regard, namely the decision in Leeuw.
The requirements for successfully relying
on the defence of impossibility
are the following:
(1)The legal provision which is infringed must
place a positive
duty on X,
(2) It must be objectively impossible for
X to comply with the
relevant legal
provision
(3) X must not himself be responsible for
the situation of
impossibility - Close
Settlement Corporation 1922 AD 194
Like active conduct, X's omission must be
voluntary in order to result in criminal liability. An
omission is voluntary if it is possible for X to perform the positive
act.
After all, the law cannot expect somebody who is lame to come to the aid of a
drowning person,
or somebody who is bound in chains to extinguish a fire. If X is
summoned to
appear as a witness at the same time on the same day in both
Pretoria and
Cape Town, it is impossible for him to be present at both places
simultaneously.
When charged with contempt of court because of
his failure to
appear at
one of these places, he may plead impossibility as a defence. In short,
the objective
impossibility of discharging a legal duty is always a defence when
the form
of conduct with which X is charged is an omission.
actus
reus
o an
act which corresponds to the definitional elements and
which is
unlawful
commissio
ocommission,
that is active conduct
Omissio
o
omission,
that is passive conduct or a failure to act
positively
ovis
absoluta
absolute compulsion
ovis
compulsiva
orelative
compulsion
