THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 196/13
Reportable

In the matter between:

THE MINISTER OF JUSTICE AND CONSTITUTIONAL                        APPELLANT
DEVELOPMENT

and

X

RESPONDENT

Neutral citation:
The Minister of Justice and Constitutional Development v X

(196/13) [2014] ZASCA 129 (23 September 2014)
Coram:
Lewis, Tshiqi, Wallis and Zondi JJA and Fourie AJA
Heard:
1 September 2014
Delivered:
23 September 2014

Summary:
Delictual claim ─ Duty of prosecutor at bail hearing ─ Failure to place all
relevant information before court ─ Should have foreseen violent crime of sexual nature
being committed by accused if released ─ negligence established ─ defence based on
s 42 of the National Prosecuting Authority Act 32 of 1998 rejected.

ORDER

On appeal from: Western Cape High Court, Cape Town (Yekiso J sitting as court of
first instance)
The appeal is dismissed with costs, including the costs of two counsel, where
employed.
___________________________________________________________________

JUDGMENT
___________________________________________________________________

Fourie AJA (Lewis, Tshiqi, Wallis and Zondi JJA concurring):
[1] This is an appeal against the order of the Western Cape High Court, Cape
Town (Yekiso J). The appeal is with the leave of the court below. Yekiso J declared
the appellant to be liable to the respondent for the payment of damages arising out of
the abduction and rape of her five year old daughter. The claim was brought by the
respondent as mother and natural guardian of her minor child as well as in her
personal capacity. In order to protect the identity of the minor child, the respondent is
cited as X. As explained below, the court a quo held the appellant liable by virtue of
the negligent conduct of a public prosecutor in regard to a bail application hearing in
the magistrates’ court for the district of Ladismith.

[2] On 11 May 2007 O[…] J[…] S[…] (S[…]) made his fourth appearance in the
Ladismith Magistrates’ Court on a charge of raping his 12 year old daughter on four
occasions during 2006 and 2007. He applied for bail and as the offence of rape is
listed as a Schedule 6 offence in terms of s 60(11)(a) of the Criminal Procedure Act
51 of 1977, he bore the onus of proving the existence of exceptional circumstances
justifying his release on bail in the interests of justice.

[3] S[…] was legally represented at the bail hearing and gave evidence under
oath. The investigating officer, Sergeant De Kock (De Kock), testified on behalf of the
State in opposing the application. At the conclusion of the hearing the magistrate

granted S[…] bail, but remanded the matter to 16 May 2007, awaiting proof of an
address at which S[…] would reside when released on bail. S[…] was detained in
custody.

[4] On 16 May 2007 the matter was remanded to 29 May 2007 as S[…] had not
yet succeeded in furnishing an acceptable address. S[…] remained in custody. On 29
May 2007 the matter was again postponed, to 15 June 2007, due to S[…]’s continued
inability to furnish an acceptable address. He was again detained in custody.

[5] On 15 June 2007 S[…] provided the court with an address in Ladismith where
he could reside upon his release from custody. The magistrate found it to be an
acceptable place of abode for S[…] and released him on his own recognisance,
subject to certain conditions.

[6] On 9 July 2007 and in the neighbouring town of Oudtshoorn, S[…] abducted
the respondent’s five year old daughter from her home and raped her twice. In the
trial that followed the commission of these offences, S[…] was found guilty and
received two sentences of life imprisonment for the rape of the minor child and a
sentence of five years’ imprisonment for her abduction. I should add that, in the same
trial, S[…] was also found guilty and received four sentences of life imprisonment for
the rape of his own daughter.

[7] When she was abducted and raped, the minor daughter and the respondent
were residing with the respondent’s fiancé (the brother of S[…]) at Oudtshoorn. It was
during the course of her relationship with her fiancé that the respondent met S[…].
She soon became aware that S[…] was a loafer and a beggar who would visit his
brother whenever he needed money. It was during one of these visits that S[…]
abducted and raped the respondent’s minor daughter.

[8] The respondent maintained that the combined negligent conduct of members
of the South African Police Service and the prosecutor, who appeared on behalf of
the State at the hearing of the bail application, caused S[…] to be released on his
own recognisance, thereby allowing him the opportunity to abduct and rape her minor
daughter. She accordingly issued summons against the Minister of Safety and

Security (as the first defendant) and the appellant (as the second defendant), for the
payment of damages suffered as a consequence of the abduction and raping of her
minor daughter. The defendants defended the action.

[9] In the event, the trial proceeded before Yekiso J, who ordered that the issue of
liability be determined first. After hearing evidence the learned judge declared the
defendants liable, jointly and severally, for payment of such damages as the
respondent may in due course prove that she has suffered in her personal and
representative capacity. It is only the appellant who has noted an appeal against this
finding, with the first defendant abiding the judgment of the court a quo.

[10] On appeal the appellant submitted that the court below erred in finding that the
prosecutor had negligently failed to execute his prosecutorial duties at the hearing of
the bail application. The appellant further contended that the presiding magistrate
erred in finding that, on the evidence before him, S[…] had discharged the onus of
showing that he should be granted bail. In addition, the appellant argued that the
court a quo erred in finding that the respondent had suffered a psychiatric injury or
emotional shock entitling her to claim damages.

[11] I should add that, on appeal, the appellant also relied on a new defence based
on s 42 of the National Prosecuting Authority Act 32 of 1998 (the NPA Act). This
defence was first raised in the application for leave to appeal and Yekiso J granted
the appellant leave to appeal on this ground too.

[12] I now proceed to deal with the relevant legal requirements for a delictual claim
of this nature.

Wrongfulness
[13] In a claim, such as the instant, where the conduct complained of manifests
itself in an omission, the negligent conduct will be wrongful only if the defendant is
under a legal duty to act positively to prevent the harm suffered by the plaintiff. The
omission will be regarded as wrongful when the legal convictions of the community
impose a legal duty, as opposed to a mere moral duty, to avoid harm to others
through positive action. See Gouda Boerdery BK v Transnet 2005 (5) SA 490 (SCA)

para 12 and Local Transitional Council of Delmas & another v Boshoff 2005 (5) SA
514 (SCA) paras 18 and 19.

[14] In Carmichele v Minister of Safety and Security & another (Centre for Applied
Legal Studies Intervening) 2001 (4) SA 938 (CC), it was held that, in developing our
common law, as required in terms of s 39(2) of the Constitution, the element of
wrongfulness for omissions in delictual actions for damages had to be developed
beyond existing precedent, taking into account the rights to life, human dignity and
freedom and security of the person (sections 11, 10 and 12 of the Constitution). In
particular (para 44), it was emphasised that there is a duty imposed on the State and
all of its organs not to perform any act that infringes these constitutional rights of the
person. The Constitutional Court added that, in some circumstances, there would
also be a positive component which obliges the State and its organs to provide
appropriate protection to everyone through laws and structures designed to afford
such protection.

[15] With regard to the duty of a prosecutor in a bail application hearing, the
Constitutional Court in Carmichele said the following (para 74):
‘There seems to be no reason in principle why a prosecutor who has reliable information, for
example, that an accused person is violent, has a grudge against the complainant and has
threatened to do violence to her if released on bail should not be held liable for the
consequences of a negligent failure to bring such information to the attention of the Court. If
such negligence results in the release of the accused on bail who then proceeds to
implement the threat made, a strong case could be made out for holding the prosecutor liable
for damages suffered by the complainant.’

[16] To this should be added the observation in para 72 of Carmichele, that,
although the consideration of bail is pre-eminently a matter for the presiding judicial
officer, the information available to the judicial officer can but come from the
prosecutor. A prosecutor has a duty to place before the court any information
relevant to the exercise of the discretion with regard to the grant or the refusal of bail
and, if granted, any appropriate conditions attaching thereto. It follows that a failure to
discharge this duty by a prosecutor constitutes wrongful conduct for purposes of the
law of delict.

[17] In Van Eeden v Minister of Safety and Security (Woman’s Legal Centre Trust
As Amicus Curiae) 2003 (1) SA 389 (SCA) paras11-14 it was held that the question
whether a particular omission to act should be regarded as unlawful has always been
an open-ended and flexible one. This court held that, in determining the wrongfulness
of an omission to act, the concept of the legal convictions of the community must now
necessarily incorporate the norms, values and principles contained in the
Constitution. It was stressed that freedom from violence is recognised as
fundamental to the equal enjoyment of human rights and fundamental freedoms and
that s 12(1)(c) of the Constitution requires the State to protect individuals, both by
refraining from such invasions itself and by taking active steps to prevent violation of
the right. In particular, it was held that s 12(1)(c) of the Constitution places a positive
duty on the State to protect everyone from violent crime. In this regard reference was
made to the seminal decision in Minister of Safety and Security v Van Duivenboden
2002 (6) SA 431 (SCA) para 20, where this court concluded that, while private
citizens might be entitled to remain passive when the constitutional rights of other
citizens are under threat, the State has a positive constitutional duty to act in the
protection of the rights in the Bill of Rights.

[18] In Minister of Safety and Security & another v Carmichele 2004 (3) SA 305
(SCA) paras 36-37, it was held that the public law duty of employees of the State who
performed functions on its behalf to protect the rights of citizens in terms of the Bill of
Rights, can, in appropriate circumstances, be transposed into a private law duty
which, if breached, may lead to an award of damages. In this regard reference was
made to the dictum in Carmichele (CC) para 74 regarding the duty of a prosecutor at
a bail application hearing. This court concluded that the position of prosecutors in this
context can in principle be no different from that of the police. Therefore, this court
held that, unless public policy considerations point in the other direction, an action for
damages would be the norm.

Negligence
[19] Fault is a general requirement for delictual liability; in the instant matter the
respondent alleges that the prosecutor was negligent in the execution of his duties.

[20] The test for determining negligence was formulated as follows by Holmes JA
in Kruger v Coetzee 1966 (2) SA 428 (A) at 430 E-F:
‘For the purposes of liability culpa arises if─
(a)
a diligens paterfamilias in the position of the defendant-
(i)
would foresee the reasonable possibility of his conduct injuring another in his person
or property and causing him patrimonial loss;
(ii)
would take reasonable steps to guard against such occurrence; and
(b)
the defendant failed to take such steps.’

[21] As emphasised by Harms JA in Carmichele (SCA), para 45, it should not be
overlooked that, in the ultimate analysis, the true criterion for determining negligence
is whether in the particular circumstances the conduct complained of falls short of the
standard of the reasonable person. See also Sea Harvest Corporation (Pty) Ltd &
another v Duncan Dock Cold Storage (Pty) Ltd & another 2000 (1) SA 827 (SCA)
para 21.

Causation
[22] For the respondent to succeed with her claim for damages she has to prove
that there is a causal link between the alleged negligent conduct of the prosecutor
and the damages allegedly suffered by the respondent and her minor daughter. It is
trite that causation has two elements, the first being a factual issue, the answer to
which has to be sought by applying the ‘but-for’ test. As explained by Harms JA in
Carmichele (SCA) para 61, the proper inquiry in this regard is what the relevant
judicial officer, who is factually assumed to make decisions reasonably, would, on the
probabilities, have done had all the relevant information been put before him.

[23] The second element of causation is legal causation, namely whether the
wrongful act is linked sufficiently closely or directly to the loss for legal liability to
ensue or whether, as it is said, the loss is too remote. See International Shipping
Company Pty Ltd v Bentley 1990 (1) SA 680 (A) at 700I.

The application of the legal principles
[24] At the trial in the high court the respondent gave evidence and called a clinical
psychologist, Ms Lategan, to testify on her behalf. De Kock testified on behalf of the
first defendant, but no witnesses were called to testify on behalf of the appellant.

Significantly, the appellant did not call the prosecutor to give evidence at the trial.
There was accordingly no evidence placed before the court a quo to gainsay the
evidence of De Kock as to what had transpired between him and the prosecutor at
the hearing of the bail application.

[25] De Kock testified that, prior to the commencement of the bail application
proceedings, he had a consultation of approximately 10 to 15 minutes with the
prosecutor. The purpose was to apprise the prosecutor of all the information
pertaining to S[…] and the reasons why bail should be opposed. De Kock testified
that he had provided the prosecutor with the following information:
a)
That S[…] had five previous convictions, including one of rape. According to
De Kock he had not by then succeeded in obtaining the official SAP69 record of
S[...], but was in possession of a printout reflecting S[…]’s previous convictions,
which he handed to the prosecutor.
b)
That S[…]’s minor daughter, aged 12, whom he had allegedly raped on four
occasions, and her mother, were opposed to S[...] being released on bail.
c)
That S[...] was a flight risk.
d)
That he was of the view that S[...] should not be released on bail and that the
members of the community shared his view.

[26] In his evidence at the bail hearing, S[...] did disclose that he had previous
convictions, including one for rape and four or five for assault. He did not provide any
details of the rape conviction and all that the prosecutor asked him during cross-
examination was how old the victim of the rape was. S[...] replied: ‘Ek dink 34’. The
prosecutor did not attempt to obtain any information from S[...] regarding the
circumstances of this rape. Nor did he ask S[...] for any details regarding his other
previous convictions, particularly whether the convictions for assault were for
common or aggravated assault and whether any weapons were used. Inexplicably
too, the prosecutor failed to tender in evidence the printout reflecting S[...]’s previous
convictions.

[27] Apart from the aforesaid, the prosecutor failed to place the information referred
to in para 25 (c) and (d) above before the court for consideration by the magistrate. In
addition, the prosecutor did not consider introducing evidence through De Kock, to

show that the State had a strong case against S[...] for the rapes of his daughter. In
his evidence before the high court, De Kock testified that the complainant’s statement
showed that the State did have a strong case against S[...], but at the bail hearing no
attempt was made by the prosecutor to introduce this statement in evidence. Nor was
any attempt made to obtain a statement from the child’s mother to whom the
daughter had reported that she had been raped by S[...].

[28] In his judgment at the conclusion of the bail hearing the magistrate was
extremely critical of the evidence (or rather the lack thereof) presented by the State.
This led him to conclude that the State did not have a strong case against S[...]. The
magistrate was also critical of the fact that he was not presented with a record of the
previous convictions of S[...] and expressed the view that De Kock had not properly
prepared for the bail application. In the result the magistrate concluded that S[...] had
discharged the onus of showing exceptional circumstances, justifying his release,
particularly in view of his (the magistrate’s) impression that the State had a weak
case against S[...]. He was granted bail, but as mentioned earlier, he was only
released more than a month later upon proof of an address where he could reside.
Even in that regard the prosecutor was at fault. He released De Kock from
attendance and made no endeavour to investigate the various addresses proffered
by S[...] as being available to him. In fact none of them were suitable addresses.

[29] In view of the appellant’s failure to call the prosecutor as a witness in the
subsequent trial before the high court, there is no explanation tendered for the
prosecutor’s failure to place all the relevant information, referred to above, before the
magistrate. I share the view of the learned judge a quo, that, had the prosecutor
placed this information before the magistrate, it would certainly have had a material
bearing on his decision whether or not S[...] should be released from custody.

[30] Apart from the prosecutor’s unexplained conduct at the initial bail hearing,
there is also no explanation for the supine attitude adopted by him subsequent to the
bail hearing. He had by then been apprised of the magistrate’s concerns regarding
the paucity of information put before him, yet, for the period of more than a month
thereafter, while S[...] was still in custody and appeared in court on three occasions,
the prosecutor took no steps at all to obtain further information relevant to the

question whether S[...] ought to be released from custody. I find it particularly
disconcerting that no effort was made by the prosecutor to obtain and place before
the magistrate the official SAP69 record of S[...], which had in the meantime been
received by De Kock on 1 June 2007.

[31] S[...]’s previous convictions spanned the period March 1983 to January 1999.
When convicted of rape in January 1999 he was sentenced to seven years’
imprisonment. His criminal record shows that, while serving his sentence for rape, he
was released on parole, but was subsequently readmitted to prison on 19 February
2005 to serve the remaining 330 days of his sentence. This apparently followed upon
a breach of his parole conditions. He was finally released on 18 July 2005 upon the
expiry of his sentence and during 2006-2007 he raped his minor daughter on four
occasions and then abducted and brutally raped the respondent’s five year old
daughter. Had S[...]’s criminal record been presented to the court when it became
available on 1 June 2007, the magistrate would have been alerted to the real
likelihood of S[...] breaching his bail conditions if he were to be released from
custody.

[32] The mere fact that, during his subsequent appearances, S[...] had difficulty in
providing an acceptable address where he could reside, ought to have sounded a
warning to the prosecutor. This substantiated De Kock’s initial view, which he had
conveyed to the prosecutor, that S[...] was a flight risk. S[...] ultimately provided an
affidavit deposed to by a person not known to anyone, namely one Flink, who
declared that he was prepared to put S[...] up. The prosecutor accepted the affidavit
without any attempt to have the suitability of this person and the address established,
particularly in circumstances where the complainant (S[...]’s daughter) was residing in
the same magisterial district.

[33] As was stressed in Carmichele (CC) para 74, each case must ultimately
depend on its own facts. On the salient facts detailed above, I have no hesitation in
concluding that the prosecutor owed the general public, and in particular the
respondent and her minor daughter, a legal duty to take all reasonable steps to
prevent S[...]’s release. The prosecutor was faced with the possible release of a
convicted rapist, accused of having raped his 12 year old daughter on four occasions

in the recent past. Apart from being a convicted rapist, S[...] had a number of
previous convictions for assault, indicating his tendency to resort to violence. He had
no fixed abode and was considered to be a flight risk. In these circumstances, the
legal convictions of the community would certainly demand the imposition of a legal
duty requiring the prosecutor to do everything in his power to prevent S[...]’s release,
by placing all the information relevant to the exercise of the discretion with regard to
the grant or refusal of bail, before the magistrate.

[34] In Carmichele (SCA) para 44, it was emphasised that foreseeability of harm is
a factor to be taken into account in determining wrongfulness. The greater the
foreseeability, the greater the possibility of a legal duty to prevent harm existing. A
reasonable prosecutor would, in my view, have foreseen that, if this potentially violent
convicted rapist, who was now accused of raping his 12 year old daughter on four
occasions, were to be set free, he would probably be inclined to rape others,
particularly young girls to whom he may have access. The respondent and, in
particular, her young daughter, were members of the public to whom this legal duty
was owed to protect their right to be free from violence perpetrated on them by S[...].

[35] Turning to the requirement of negligence, a reasonable prosecutor would, in
the prevailing circumstances, undoubtedly have foreseen the reasonable possibility
that if he or she were to fail to place all relevant information before the magistrate,
S[...] might be granted bail. Furthermore, as I have already found in dealing with the
element of wrongfulness, a reasonable prosecutor would have foreseen the
reasonable possibility of S[...], if released on bail, causing bodily injury to vulnerable
members of the community, particularly women and young children.

[36] I accordingly find that, in the prevailing circumstances, a reasonable
prosecutor would have taken steps to place all relevant information before the
magistrate to prevent S[...] from being released from custody. The prosecutor failed
dismally in his duty to take such steps during and subsequent to the bail application
hearing. His failure to do so remains unexplained by virtue of the appellant’s failure to
call him as a witness at the trial in the court below. It follows that the prosecutor’s
conduct fell far short of the standard of the reasonable person and was negligent.

[37] In considering the requirement of causation I have no doubt that, had the
prosecutor placed all the available relevant information before the court at the original
bail hearing, or at a subsequent re-hearing, the magistrate would not have ordered
S[...]’s release, and the resultant abduction and rape of the respondent’s minor child
would not have taken place. In the circumstances the requirements for the
establishment of both factual and legal causation have been met.

[38] As mentioned earlier, it was submitted on behalf of the appellant that, in any
event, the magistrate erred in finding that S[...] had on the evidence before the court
discharged the onus of showing that he should be granted bail. In my view, this is a
self-serving argument which does not assist the appellant. What the respondent has
proved is that, had the prosecutor (as he was lawfully obliged to do) placed all the
relevant information before the magistrate at the bail hearing, or at a subsequent re-
hearing, the release of S[...] would probably have been prevented. Therein lies the
negligent dereliction of duty by the prosecutor and the question whether or not the
magistrate had erred in granting S[...] bail on the basis of the incomplete evidence
placed before him, is legally irrelevant.

Section 42 of the NPA Act
[39] I now deal with the appellant’s belated reliance on s 42 of the NPA Act. The
section reads as follows:
‘Limitation of liability
No person shall be liable in respect of anything done in good faith under this Act.’

[40] This defence was not raised in the appellant’s pleadings. Counsel for the
appellant submitted that it was not necessary to do so, as it is a matter of law which
has to be considered irrespective of whether or not it has been pleaded. In fact,
counsel contended, it is the respondent who bears the onus of proving that the
prosecutor had failed to act in good faith.

[41] I do not agree. To my way of thinking, s 42 of the NPA Act seeks to introduce
a ground of justification for conduct which is prima facie wrongful. Therefore, wrongful
conduct that would otherwise give rise to delictual liability, may be justified and
rendered lawful by virtue of the statutory immunity conferred in terms of s 42 of the

NPA Act. It is a defence specifically directed at the wrongfulness element of delictual
liability. It is trite that, in the case of a defence of this nature, the onus rests on the
defendant (the appellant in this instance) to plead and prove the defence. See J R
Midgley & J C van der Walt ‘Delict’ in Law of South Africa 2 ed Vol 8, Part I para 86,
read with the authorities cited at note 1.

[42] Apart from failing to plead this defence, no evidence was tendered by either
party in regard thereto. The respondent objected to the raising of this new defence on
appeal, in that, apart from not being covered by the pleadings and the evidence, its
consideration at this late stage involves unfairness to the respondent. See Cole v
Government of the Union of South Africa 1910 AD 263 at 272 and Paddock Motors
(Pty) Ltd v Igesund 1976 (3) SA 16 (A) at 23D-F.

[43] I have no doubt that, had this defence been properly pleaded by the appellant,
the course of the trial would have been fundamentally different. The appellant as the
party bearing the onus of proving this defence would certainly, if it wished to
discharge the onus, have been bound to call the prosecutor as a witness to
demonstrate his good faith. Apart from calling witnesses in rebuttal, one can imagine
that the respondent’s legal representatives would have covered several issues
relating to the s 42 defence with the prosecutor once he entered the witness box.

[44] It would certainly be grossly unfair to the respondent if the appellant were to
be entitled to raise the s 42 defence at this late stage. Therefore, the interests of
justice dictate that the appellant should not be allowed to do so.

[45] Further, and in any event, I am of the view that, for the following reasons, a
defence based on s 42 of the NPA Act has no merit. In Simon’s Town Municipality v
Dews & another 1993 (1) SA 191 (A), a statutory defence of this nature, based upon
a similarly worded statutory provision, namely s 87 of the Forest Act 122 of 1984
(now repealed), was raised. This section read as follows:
‘No person, including the State, is liable in respect of anything done in good faith in the
exercise of a power or the carrying out of a duty conferred or imposed by or under this Act.’

[46] Corbett CJ, writing for the court, concluded that the relevant statutory provision
had to be interpreted against the general background of the law relating to statutory
authority as a defence to a delictual claim. In terms of this defence, conduct which
would otherwise give rise to delictual liability, may be justified and rendered lawful by
the fact that it consists of the exercise of a statutory power. See also Johannesburg
City Council v Television & Electrical Distributors (Pty) Ltd & another 1997 (1) SA 157
(A) at 164I-165H.

[47] However, the learned Chief Justice further emphasised (at 196B-E) that the
person exercising the statutory power is under a duty to use due care and to take all
reasonable precautions to avoid or minimise injury to others. The failure to exercise
the statutory power with due care and without having taken reasonable precautions
to avoid or minimise injury to others, renders the conduct of the repository of the
statutory power unlawful.

[48] With regard to s 87 of Act 122 of 1984, it was held (at 196G-H) that it
postulates two requirements for legal immunity: (a) the act in question must have
been done in good faith, and (b) it must have been done in the exercise of a power or
duty under the Act.

[49] As to the requirement of ‘good faith’, it was held (at 196H-I) that it relates to
the subjective state of mind of the repository of the power and, broadly-speaking,
requires that, in exercising the power, he or she should have acted bona fide,
honestly and without ulterior motive.

[50] With regard to the second requirement for legal immunity, Corbett CJ said the
following (at 196J-197A):
‘As to (b), it seems to me that the section is clear. The person sought to be held liable must
show that he acted within the authority conferred by the power in question. It necessarily
follows that if, owing to a failure to exercise due care or to take reasonable precautions, he
exceeded the power and acted without authority, he will be unable to establish requirement
(b) and his reliance on s 87 must fail.’

[51] I should add that it was held (at 196H and 197C, respectively) that a person
seeking to rely on s 87 bears the onus of establishing that his or her conduct falls
within the ambit of the section and that the onus of establishing the requirement of
good faith would also be on the party claiming immunity.

[52] Returning to s 42 of the NPA Act and in view of the principles outlined above,
it has to be borne in mind that, in terms of s 20 of the NPA Act, the prosecuting
authority and accordingly also the prosecutor involved in this matter are clothed with
the statutory power to institute and conduct criminal proceedings and matters
incidental thereto on behalf of the State. Where s 42 refers to ‘anything done . . .
under this Act’, it by necessary implication refers to the powers conferred in terms of
s 20 of the NPA Act. A prosecutor exercising this power and wishing to avail him or
herself of the immunity afforded by s 42 is required to show that he or she acted
within the authority conferred by the power in question, which, in turn, requires him or
her to have taken all reasonable precautions to avoid or minimise injury to others. A
failure to do so would render his or her conduct unlawful and the reliance on s 42 of
the NPA Act would therefore fail.

[53] Even if it is accepted, without so deciding, that the prosecutor in this case
acted bona fide, it is abundantly clear that he had failed to use due care and to take
all reasonable precautions to avoid or minimise injury to the respondent and her
minor daughter. His negligent failure to place all relevant information before the
magistrate resulted in S[...] being released from custody, thereby allowing him the
opportunity to abduct and rape the minor child. This negligent conduct would
preclude the appellant from relying on the ground of justification created by s 42 of
the NPA Act.

Liability for the respondent’s emotional shock
[54] I now turn to the appellant’s contention that the respondent failed to prove that
she has suffered a psychiatric injury or emotional shock as a consequence of the
abduction and rape of her minor daughter. In my view, there is no merit in this
submission. The clinical psychologist, Ms Lategan, testified that, subsequent to the
abduction and rape, she treated the child and in the process observed the
respondent who was always present. Although her main focus was the welfare of the

child, she necessarily had to deal with both of them. According to her the respondent
has suffered severe post-traumatic stress as a result of this incident, which will
endure for the rest of her life.

[55] The appellant did not present any evidence, expert or otherwise, in rebuttal.
Had it wished to do so all that it needed to do was to invoke the provisions of rules
36(1) to (5) but the respondent did not do so. I therefore agree with Yekiso J that the
respondent has established the existence of a psychological injury or emotional
shock for purposes of the merits of her claim in her personal capacity.

[56] In the result the appeal falls to be dismissed.

[57] Finally, with regard to costs, it was submitted on behalf of the respondent that
the appeal has been brought on spurious grounds, which justifies the granting of a
punitive costs order against the appellant. I do not believe that it can be said that the
grounds of appeal are spurious. On the contrary, Yekiso J granted appellant leave to
appeal on the basis that a reasonable prospect of success exists. In the
circumstances a punitive costs order is not justified. I am, however, of the view that
the matter justified the employment of two counsel.

[58] The following order is made:
The appeal is dismissed with costs, including the costs of two counsel, where
employed.
_________________
P B Fourie
Acting Judge of Appeal

APPEARANCES:

For the Appellant:         J van der Schyff

Instructed by:

Brink & Thomas, Cape Town
Matsepes Attorneys, Bloemfontein

For the Respondent:    A de Vos SC (with her A F Schmidt)

Instructed by:

Johan Wagener Inc, Oudtshoorn

Webbers, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

23 September 2014

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

The Minister of Justice and Constitutional Development v X
(196/13) [2014] ZASCA 129 (23 September 2014)

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

Today the Supreme Court of Appeal (SCA) delivered a judgment dismissing the appeal by the
appellant, the Minister of Justice and Constitutional Development, and upholding an order of the
Western Cape High Court, Cape Town.

The issue before the SCA was whether the appellant was correctly held liable for payment of
damages to the respondent, by virtue of the alleged negligent conduct of a public prosecutor during a
bail application hearing held in the magistrates’ court for the district of Ladismith (Cape).

The respondent’s claim arose in the following circumstances:
Ockert Johannes Steyn appeared in the Ladismith Magistrates’ Court on a charge of raping his 12
year old daughter on four occasions during 2006 and 2007. He applied for bail, which was granted,
and on 15 June 2007 he was released from custody. On 9 July 2007 and in the neighbouring town of
Oudtshoorn, Steyn abducted the respondent’s five year old daughter from her residence and raped
her twice. The respondent maintained that the combined negligent conduct of members of the South

African Police Service and the prosecutor caused Steyn to be released from custody, thereby
allowing him the opportunity to abduct and rape her minor daughter. The high court declared the
appellant and the Minister of Safety and Security liable, jointly and severally, for payment of such
damages as the respondent may in due course prove that she has suffered in her personal capacity
and in her capacity as mother and natural guardian of her minor child.

On appeal the appellant submitted that the high court erred in finding that the prosecutor had
negligently failed to execute his prosecutorial duties and that the respondent failed to prove that she
has suffered a psychiatric injury or emotional shock entitling her to claim damages in her personal
capacity.

The SCA was in agreement with the finding of the high court that the prosecutor failed to exercise due
care and to take reasonable precautions to avoid or minimise injury to the respondent and her minor
daughter. His negligent failure to place all relevant information before the magistrate resulted in Steyn
being released from custody, thereby allowing him the opportunity to abduct and rape the minor child.
The SCA held further that the respondent has established the existence of a psychological injury or
emotional shock for purposes of the merits of her claim in her personal capacity.

--- ends ---