THE IMPACT OF THE CONSTITUTIONAL IMPERATIVE OF THE STATE TO AVOID HARM ON DELICTUAL LIABILTY FOR AN OMISSION Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as Amicus Curiae) 2003 1 SA 398 (SCA)

Abstract

In the present case the Supreme Court of Appeal recognised the constitutional imperative of the State to protect the rights contained in the Bill of Rights, particularly with regards to protecting citizens from violent crime.
This case represents yet another step in the long development of the history of liability for an omission which commenced in 1912 with the “prior conduct” rule in Halliwell v Johannesburg Municipal Council (1912 AD 695) and which has continued up to the present day with the further development of the common law in terms of the Constitution of South African Act 108 of 1996 in decisions such as Carmichele v Minister of Safety and Security (2001 4 SA 938 (CC)).
The decisions made in the Carmichele matter by the Constitutional Court and the various divisions of the High Court form the backdrop to this case, a fact which necessitates a brief discussion of this series of decisions, prior to embarking upon a discussion of the Van Eeden case itself.