The Duty to Protect Women from Sexual Violence in South Africa

Abstract

In 1998 Ghia Van Eeden was sexually assaulted by a serial rapist who had escaped from police custody due to the negligence of the South African police authorities. Claiming that the State owed a common law duty of care to potential victims to protect them from violent crimes, Van Eeden sought damages for the harm she had suffered. In a path-breaking decision, the Supreme Court of Appeal (S.C.A.) found that a duty of care did indeed exist and that its execution had to be considered in line with the constitutional requirement to protect women's right to be free from violence and the constitutional obligation to develop the common law so as to promote the spirit, purport and objects of the South African Bill of Rights. Examining the Van Eeden decision in terms of its substantial development of the circumstances in which the State may be judged liable for a wrongful omission, this note positions the S.C.A.'s decision in the context of the evolving case law of the Constitutional Court on sexual violence and ultimately questions its practical significance for addressing the prevalent abuse of women in South Africa.