The Legal Basis: Constitutional Obligations

The South African Constitution (Act 108 of 1996) places explicit and implied obligations on the State to protect its citizens. Our case is built on the argument that the government's sustained failure to reduce high crime violates these core rights, making the failure unconstitutional.

 

1. The Right to Freedom and Security of the Person (Section 12)This is the most direct and crucial right. Section 12(1)(c) of the Bill of Rights 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 public or private sources." The argument is that the State has a duty to protect citizens from private violence (crime) by effectively organising and resourcing the police, courts, and prison services.

 

2. The Constitutional Duty of the Police (Section 205)

The objects of the South African Police Service (SAPS) are explicitly stated in the Constitution:"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." A persistent and high rate of crime suggests a breach of this constitutional mandate.

 

3. The Duty to Fulfil Constitutional Obligations (Section 167(4)(e))

The Constitutional Court has the exclusive power to decide whether Parliament or the President has failed to fulfil a constitutional obligation (Section 167(4)(e)). This is the specific section that a case of this magnitude would invoke.

Legal Precedents and Strategy

The South African courts, especially the Constitutional Court, have previously ruled on the state's duties in relation to crime:

 

The Carmichele Principle (2001): This landmark case established that the courts have a duty to develop the common law to promote the spirit, purport, and objects of the Bill of Rights. Specifically, it affirmed the State's duty to protect citizens from crime, particularly gender-based violence, by ensuring that police and prosecutors act effectively.

 

The Glenister Cases (2011): The Constitutional Court found that the legislature failed to fulfil its constitutional duty to establish an adequately independent and resourced anti-corruption unit (the Directorate for Priority Crime Investigation, or Hawks). This is a strong precedent for challenging the structure and efficacy of state institutions where the lack of independence/capacity leads to the failure to combat crime/corruption.

 

The Required Legal Remedy

We would not be seeking monetary damages for every crime victim, but rather a structural interdict or a declaratory order from the court.

 

Declaratory Order:

A declaration that the government (e.g., the Minister of Police and the President) has failed to fulfil its constitutional obligation to protect citizens under Section 12 and Section 205 due to the high, persistent, and/or increasing levels of violent and organised crime.

 

Structural Interdict:

An order compelling the government to take specific, measurable, and time-bound steps. Develop and implement a new, effective, and evidence-based national crime prevention strategy.

 

Practical and Legal Hurdles

 Justiciability:

Courts are generally reluctant to interfere with the functions of the Executive (government) or Legislature, particularly concerning budget allocation and policy formulation. The court must be convinced that the government's failure is so severe that it is irrational or constitutes a non-fulfilment of a constitutional duty, not just sub-optimal policy.

 

Evidence:

The case requires overwhelming evidence (statistics, expert reports, international comparisons) to demonstrate that the high crime rate is a result of the State's systemic failure and not merely a complex societal problem.

 

Locus Standi:

A collective of concerned citizens would likely have the strongest standing to bring such a case, as we can argue that we are acting in the public interest to protect the rights of all citizens.