Extent to Which State Has a Legal Duty to Protect

1. Introduction

The Constitution of the Republic of South Africa contains a Bill of Rights which clearly states that “Everyone has the right to freedom and security of the person, which includes the right to be free from all forms of violence from either private or public sources” . This constitutional right clearly illustrates the creation of a positive legal duty on the police to protect all citizens from violence in any form. This legal duty to act positively is on the police because they are seen as agents of the state in enforcing the protection of the rights of all humans. Also they have a constitutional duty to protect because “the objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law”

In South African criminal law the responsibility of the state to protect the citizens under its governing can be classified under the element of the crime conduct where a decision has to be made as to whether there is a liability for an omission or not. The big question is whether there is an imperative legal norm on the state to protect all the citizens under its government.

The “Minister van Polisie v Ewels” case was the ground breaking case concerning the legal duty of the state to act positively because it was the first case to recognise it. In the “Ewels” case it was found that no legal duty to stop someone from causing harm exists because a special duty to protect will only exist if there is: “(1) a direct contact or continuing contact between the victim and the governmental agency or official; and (2) a justifiable reliance on the part of the victim” . However, there are certain...

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...lication that will befall upon them. These implications can be divided into civil law implications as well as criminal law implications. Civil law implications would be, for example, claims for damages. Criminal law cases on the other hand would lead to prosecution, imprisonment, amongst other things.

Works Cited

Carmichelle v Minister of Safety and Security and another 2000 (4) All SA 537 (A).

Constitution of the Republic of South Africa Act 108 of 1996.

Criminal Procedures Act 51 of 1977.

Govender and others v S 2004 (2) All SA 259 (SCA).

Miller v District of Columbia, 841 A. 2d. 1244 – DC: Court of Appeals 2004.

Minister of Law and Order v Kadir 1995 (1) SA 303 (A).

Minister van Polisie v Ewels 1975 (3) SA 590 (A).

Nkumbi v Minister of Law and Order 1991 (3) All SA 314 (E).

Van Eeden (formerly Nadel) v Minister of Safety & Security 2002 (4) All SA 346 (SCA).