Prosecutorial Negligence and Negligent Police Investigation: An Analysis of recent Canadian and South African Decisions (3)

  • Chuks Okpaluba
  • Adjunct Professor, Nelson Mandela School of Law,...

Editor's Note:
Part 2 of this article was published in Volume 32, Issue 2 (2018) of Speculum Juris at 153–174

That the State could be held liable for the negligent performance of prosecutorial duties has been well established in contemporary South African law since Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC). In contrast, in the Canadian jurisdiction the element of malice, not mere negligence, has been the prerequisite for prosecutorial liability since Proulx v Quebec (Attorney General) (2001) 206 DLR (4th) 1 (SCC). While, however, the South African Constitutional Court, as discussed in part one of this article, opened the door for the simultaneous development of the law of prosecutorial and police negligence, the Supreme Court of Canada appeared to have closed such door partly by rejecting the concept of prosecutorial negligence, the subject matter of part two of this article. However, as the discussion in part three in this series shows, the Supreme Court of Canada has ushered in the tort of negligent police investigation in modern Canadian public authority liability law. Even so, the courts in both jurisdictions had to jettison the public interest immunity principle of the English common law whereby the police is immune from liability in their investigative duties. The South African development is traceable to a combination of three factors: the influence of the Bill of Rights; the constitutional mandate to the courts to develop the common law to accord with the spirit, purport and objects of the Bill of Rights; and the adjudicative dynamism of the courts towards the interpretation and application of the provisions of the Constitution. The recent decisions bear witness to the proposition that South African courts ensure, at all times, that the law affords the individual the protection the Bill of Rights was designed to provide such

Speculum Juris Volume 33
Issue : 
Issue 1
  • 2019