Six months after winning her ground-breaking court case, photographer Alix Carmichele has not yet been paid by the state for the psychological and physical damage suffered at the hands of a rapist released on bail.

Carmichele won the case against the ministries of Justice and of Safety and Security in the Supreme Court of Appeal in Bloemfontein late last year.

Francois Coetzee, previously convicted of rape but released on bail on a charge of raping a teenage girl, attacked Carmichele in a Knysna beach house in 1995. He had been lying in wait for her with a pick-axe.

He split open her scalp, broke two bones in one of her arms and stabbed her in the chest.

Carmichele maintained that the state had a duty to protect citizens and that Coetzee should not have been let out on bail.

He was later convicted of the second rape, and of attacking Carmichele.

Her case against the ministries took seven years. She has been assessed for medical damages, and is currently being assessed for psychological pain.
 

Speaking yesterday from the office of a Port Elizabeth psychologist, one of the team assessing her damages, she said she had spent weeks with experts determining her costs.

"I'm frustrated. I want to get on with my life and I want closure," she said. "But how can you quantify the damage I've incurred, not only financially but also physically and psychologically?"

Her left arm was often painful and she still suffered anxiety attacks and flashbacks. "Can you hear I am angry?" she said.

Carmichele's legal bills have been paid, but the specialists appointed to assess damages in such cases "had not been available on call", she said.

The Cape High Court threw out Carmichele's case in 1997, a decision that was upheld by the Supreme Court of Appeal.
 

She took her case to the Constitutional Court in 2001 and won with costs the next year in the Cape High Court. The two ministries appealed, before she finally won.

Carmichele battle rages on

Bloemfontein - The state has sought leave to appeal against a watershed Cape High Court judgment in May, holding it liable for damages for a woman assaulted by a rape suspect let out on bail.

More than five years after Alix Jean Carmichele first lodged her claim against the state, the ministers of safety and security and of justice on Thursday lodged an application to this effect in the Supreme Court of Appeal in Bloemfontein.

They asked the court to overturn the high court judgment on the grounds that it placed an "inappropriate burden" on the state.

The application states: "Effectively, the judgment amounts to laying down the principle that a person with one previous conviction for assault, sexual offences, etc should not be allowed out on bail, and if he is and commits another crime, the state has to compensate by the payment of delictual damages."

Delict is a legal term relating to the breach of a duty of care.

In November 1997, the Cape High Court dismissed Carmichele's claim and absolved the state from liability.

Her appeal to the Supreme Court of Appeal was dismissed in September 2000.

Right to be protected

Carmichele then turned to the Constitutional Court, which referred the matter back to the high court last year to be considered afresh. It said the common law had to take into account the spirit and aims of the constitution, which guarantees the right to be protected against sexual violence.

On May 14, the High Court found in Carmichele's favour and, in July, dismissed an application by the state for leave to appeal. It ordered the ministries to pay her R177 000 in damages, saying the police and prosecuting authority had failed in their legal duty to protect potential victims.

The judgment has been hailed as a victory for crime victims and a reminder to the state of its duty to protect citizens.

Carmichele's assailant, Francois Coetzee, had previous convictions for housebreaking and indecent assault and was awaiting trial for the alleged rape of a 16-year-old girl when he attacked Carmichele with a pick handle and knife at Noetzie near Knysna in August 1995.

Bona fide errors of judgment

She had a fractured skull, broken arm, and a deep knife wound to the chest, and was unable to work for seven months.

Coetzee was eventually convicted of attempted rape of the girl and jailed in September 1995 for seven years. For the attack on Carmichele, he was convicted of attempted murder and sent to prison in December 1995 for 10 years.

The ministers contend in their application that the high court judgment "casts the net of unlawfulness extremely wide, with resultant far-reaching consequences for the State".

"It effectively means that bona fide errors of judgment by police officials and public prosecutors when making recommendations or taking decisions in respect of the release of detainees on bail automatically attracts delictual liability."

The ministers contend the court did not properly weigh up the interests of the victim, women and the public at large on the one hand, against the interests of accused persons and the state on the other.

Inappropriate burden on the state

"The trial judge erred in not having considered the chilling effect on the police and prosecutors in the bona fide exercise of their public functions," the application reads.

"This amounts to a serious inroad on the fundamental rights of the accused and an inappropriate burden upon the state."

The ministers urged the Supreme Court of Appeal to consider their application favourably, saying it was a matter of great importance to all members of the police and prosecuting authority.

They also sought condonation for failing to lodge the application timeously.

Carmichele has until September 9 to oppose the application.

Carmichele oorgehaal om staat se appèl teen te staan
25/05/2003 21:54 - (SA)

ELSABÉ BRITS

KAAPSTAD. - "Al moet ek weer konstitusionele hof toe gaan . . . ek sal nie opgee nie," het me. Alix Carmichele gesê.

Haar stryd van agt jaar is steeds nie verby nie nadat die staat verlede jaar verlof gekry het om te appelleer teen 'n waterskeidingsuitspraak wat ten gunste van haar was. Die staat het Donderdag sy betoogrede by die appèlhof ingedien.

Die Kaapstadse hooggeregshof het in Mei verlede jaar beslis die staat is aanspreeklik vir skadevergoeding aan Carmichele, wat aangeval is deur 'n misdadiger wat op borgtog vrygelaat is. Sy het die staat se aansoek om verlof tot appèl teengestaan nadat sy haar saak gewen het, maar kon nie die appèl stuit nie.

Carmichele is in Augustus 1995 op Noetzie, naby Knysna, grusaam met 'n piksteel en 'n mes aangeval deur 'n veroordeelde seksoortreder. Sedertdien veg sy ononderbroke om die staat aanspreeklik te hou vir die aanval omdat die aanvaller op borgtog was tydens die aanval.

Haar regsverteenwoordigers het Vrydag gesê hulle gaan die appèl teenstaan en binne twee maande hul betoogrede by die appèlhof inlewer. Na verwagting sal die saak vanjaar nog aangehoor word. Indien Carmichele wen, sal die saak weer na die hooggeregshof verwys word vir die bepaling van 'n spesifieke bedrag vir skadevergoeding.

Laying down the law to law enforcers. Sunday Times of 7 March 2004.

Ten years of the Constitutional Court . Attacked by man police should have kept behind bars, woman took on the system - and won.

It was the ancient Greek tragedians who crowned woman the eternal symbol of suffering. Today's media merely perfected it. Whether staring out in mute suffering from a television screen after being raped in Bosnia, or going off to her chamber to asphyxiate herself because her sons fell on the battlefields of Troy, woman is all there is to be said of victim-hood.

But Alix Jean Carmichele would be no such well for the playwright or editor's ink - despite being beaten, chopped up and nearly killed one otherwise ordinary winter's morning nine years ago in a tiny hamlet outside Knysna.

Were Carmichele a character from Greek mythology, she would be Sophocles' Antigone, who preferred death to a compromise with injustice.

In playwright Jean Anouihl's Antigone, the heroine's last words are a refusal to repent for her defiance of the king's order that she not bury her dead brother. "I will not be satisfied with the bit of cake you offer me if I promise to be a good little girl."

Carmichele, too, refused to play the victim role. Instead, she became a headache that wouldn't go away for nearly 10 years, not for the man who attacked and nearly killed her, but for those she blamed most - the country's law enforcers who could have, and should have, prevented her brutal attack.

On March 16 2001 the Constitutional Court found that Carmichele had genuine legal grounds to use the lower courts to pursue a claim of damages from the police and the prosecution service on the grounds that they were negligent in keeping her attacker, a habitual offender with a disturbing history of violence against women, out of society and thus away from her.

This brought a measure of closure to a legal tussle nearly six years old.

Carmichele says her struggle was for acknowledgment - that the police and prosecution service had failed in their obligation to protect her from her attacker, Francois Coetzee.

She says he should never have been released on free bail - or at all - after he had been arrested in connection with the alleged rape and serious assault of a young woman.

Carmichele's battle has always made her feel alone - as alone as she was on August 6 1995 as she walked into the lounge of her friend's house, and straight into Coetzee's pickaxe.

Despite the horror, it was the first and only time she screamed. "It was a low, deep primal scream - almost like it wasn't coming out of my own body."

As the blows rained down, she remembers she was "completely lucid", even as she was kicked, slashed and had a steak knife thrust so deep into her chest that the blade broke off.

Her eyes were blinded by blood, but she managed to wipe them with a badly lacerated hand, only to stare into the eyes of a man she knew - a man she and her friend had repeatedly complained to the police about.

Weeks before the attack, Carmichele's friend Melanie Gosling had complained to local police and a senior prosecutor about the presence of a habitual offender with a violent past in their area.

She was told the authorities' hands were tied unless Coetzee, the son of Gosling's domestic worker, "committed another offence" - which he did.

Carmichele remembers how she felt when she looked into the eyes of Coetzee: "I wasn't surprised."

Carmichele is writing about her attack.

An oddity to some is that Carmichele appears so emotionless when she recounts the grimmest details of her attack. And when asked what her strongest emotion is when remembering her attack, it is not fear or panic or shock, but anger.

Carmichele has been a photographer for 17 years, her shutter capturing the joys, milestones and sorrows of others.

But since her case, the lens has reversed, making her the photographed and quoted subject.

Despite what she calls "the initial bravado", she is an introvert who doesn't make friends easily and is jealous of her privacy.

She calls herself " Bridget Jones" in the love-life stakes, and lives on her parents' farm.

It's hardly the image of the lone crusader the press have come to know, the woman who tirelessly fought to get the courts to acknowledge that the law enforcers were as guilty of failing to protect her from attack as Coetzee was for attacking her.

Today Coetzee is behind bars and after five separate hearings of Carmichele's case, the courts have finally agreed she should be compensated for the negligence of those who should have kept Coetzee out of society.

The many cases she has fought over the issue have taught Carmichele patience and "to never to expect too much". The first time she walked into a courtroom, she was "fired up". Now she is more circumspect.

Her court victory, she sometimes cannot help but feel, was short-lived, that it will still be a long time before she can finally say she has won.

The other day someone asked her how she felt about the Constitutional Court. She thought of answering with a worn-out platitude about how the court protects the weak and needy.

But she admits: "I questioned the need for such a court in the first place, in the deep and dark Third World.

"I was wrong."