Publication: Sunday Times Issued: Date: 2004-03-07 Reporter: Carmel Rickard

Victims Who Took On the State and Made It Pay

 

Publication 

Sunday Times

Date 2004-03-07

Reporter

Carmel Rickard

Web Link

www.suntimes.co.za

 

The picture Alix Carmichele brings to mind is of someone involved in two titanic struggles. One, against her attacker, saved her life. The other, against the state, saved her sanity and her dignity by ultimately forcing an acknowledgment of responsibility from those who should have protected her.

But she is not the only one to fight these twin battles. Dirk van Duivenboden, who like Carmichele almost lost his life because of official negligence, also fought for the state to recognise that it was responsible for his plight. And it was partly because of his legal action that Carmichele was successful in the end.

From the judgments in the case, Van Duivenboden seems the kind of person you would be glad to have living across the road. But unluckily for him, Neil Brooks, the man opposite, was a neighbour from hell.

Brooks had two licensed firearms, large quantities of ammunition - and a serious drinking problem. He had assaulted his wife and children on a number of occasions, including one on which the police were called after he locked himself into his house and threatened to shoot himself, his family and anyone who came near the house.

Finally, in October 1995, after he had been drinking too much, Brooks shot and killed his wife and daughter, and in the process shot and injured Van Duivenboden, who had tried to intervene.

Fortunately Brooks was arrested soon afterwards and he is now behind bars. But the point Van Duivenboden made to the courts thereafter is that Brooks ought not to have had any firearms.

The law says that if someone threatens to kill anyone else - or indeed himself or herself - with a firearm, then that person should be declared unfit to have a licence and the firearm is to be seized by the police.

Since the police knew well in advance of the family murders that Brooks fell under the definition of someone "unfit to possess a firearm" and yet took no steps to have his licence revoked and his guns removed, Van Duivenboden argued that they had been negligent and therefore he was owed compensation by the state for his injuries.

By the time Van Duivenboden's fight reached the Appeal Court, Car michele had already been to the Constitutional Court. There she'd been told that in principle claims such as hers might be allowed if the circumstances warranted it, and the matter was referred back to the Cape Town High Court.

While Carmichele's issue was being dealt with in Cape Town, Van Duivenboden was before the Appeal Court.

It was a crucial moment. Until then, South Africa had followed English law in allowing a claim for negligence against a public official only when the official involved knew the negligence would harm a particular person, rather than that people generally might be harmed. Now the Constitutional Court had said this legal approach could be developed if the circumstances of a case warranted it.

The judgment by Judge Robert Nugent clinched matters. He ruled that the police had been negligent in not depriving Brooks of both his licence and his firearms.

The state had a duty under the Constitution to act in protection of the Bill of Rights. This in turn bolstered the concept of state accountability: if the state didn't fulfil its constitutional obligations it could be held responsible.

In his decision, Judge Nugent not only applied the Constitutional Court's Carmichele principles but developed them to deal specifically with accountability - the state should more readily be held responsible for the way its officials did their jobs, he held.

The cases of Van Duiven boden and Carmichele have enormous implications for us all. They will help others who follow with similar litigation.

And while responsible action is important to prevent crime, accountability goes far wider than ensuring police aren't negligent. These two decisions will help press the state into being more accountable generally for the way it carries out its duties to the public.

With acknowledgements to Carmel Rickard and the Sunday Times.